What steps must be taken to ensure lawful industrial action?

Last updated: 17 Apr 2023

This page details the important steps that must be taken to ensure legal industrial action in the UK.

It is important to note that there is not a positive right to strike in the UK. But rather the law provides for immunity from legal claims taken against unions, and protection for members taking action, where there is lawful industrial action which is compliant with the legal requirements.

To have lawful industrial action the following steps must be taken:

1. The trade dispute

  • The trade dispute must be identified, and we need to be clear this is understood by the union and employer.
  • The dispute could be over pay, working conditions, job cuts, redundancies, recognition, etc.

2. Notice of ballot

  • Written notice that we are intending to ballot on industrial action must be provided to each employer.
  • The notice must include lists, with numbers, of the categories of workers and their workplaces.
  • If members pay their union subscriptions by deductions from pay (check off) we can describe the group of members without detailed lists.
  • The notice must be issued and received by the employer 7 days before the ballot opens.

3. The Ballot

  • An independent scrutineer must be appointed (Prospect uses Civica for this).
  • A sample of the ballot paper must be sent to the employer at least 3 days before the opening of the ballot.
  • The ballot paper must meet statutory requirements and include:
    • A description of the trade dispute
    • The expected period or dates for action
    • If members are being balloted on taking action short of a strike, the ballot paper must include a description of the action (for example, an overtime ban or work to rule).
  • The result of the ballot must be sent to the employer as soon as possible (usually the same day).

4. Calling action

  • At least 50% of those entitled to vote must vote
  • There must be a majority, of those voting, in favour of taking action
  • There is an additional test for ‘important public services (narrowly defined as transport, fire, health, education, and border security), in these cases 40% of those entitled to vote must vote in favour.

5. Notice of action

  • Each employer must be sent a notice of industrial action.
  • The notice must be issued and received by the employer 14 days before the action starts.
  • The notice must include updated lists of categories and workplaces of those we are expecting to call out.
  • The notice must also state whether the action will be continuous or discontinuous.

If we get the balloting process wrong, members would have limited protection against disciplinary action and dismissal. And the Employer could seek an injunction to stop the act taking place and claim damages against the union of up to £250k (shortly increasing to £1 million).