Ballots for Industrial Action - FAQs for Academies
In these FAQs we consider the more technical requirements around balloting and industrial action.
For FAQs on the practical issues and questions which you and your school may be facing, please click here.
Ballots for Industrial Action - Frequently Asked Questions for Academies
- When is strike action lawful?
- Do we need to recognise the trade union for them to carry out official strike action?
- When must the trade union serve notice of the ballot?
- What information must be provided by the trade union in the notice?
- What is a 'trade dispute'?
- Should the school know what staff are being asked to vote on?
- Which members of staff should be balloted?
- Can members of staff who are not affected join in the ballot?
- What are the practical arrangements for organising a ballot?
- How much support is needed for industrial action to occur?
- When is the ballot result announced?
- How should the ballot result be announced, and what must it contain?
- How long can the unions rely on the mandate from the ballot?
When is strike action lawful?
Industrial action is only legal for unions if it is in furtherance of a valid trade dispute and complies with complex balloting and notice provisions. In essence, the ballot should cover all members who might be called out to participate in the strike and should be accurate. For most employers a simple majority of those who vote in the ballot is required to provide a mandate for industrial action. However, for academies and maintained sector schools in England (which are considered to be an important public service) there is an additional threshold, in that at least 40% of those entitled to vote must also vote in favour of industrial action.
Each employer should receive:
- a notice of intention to ballot seven days before the ballot
- a copy of the ballot paper three days before
- a notification of the outcome of the ballot as soon as reasonably practicable
- a notice of the intended industrial action at least seven days before the strike is due to take place
It is not as easy as it used to be for employers to stop or delay strikes on technical grounds. However, it is important for employers to be aware of balloting rules, even in circumstances where the ballot has already taken place. Having reviewed the questions and answers below, if you think there might be a defect in a ballot involving your school, you should take expert advice.
In the event that there is a lawful ballot then staff who participate in industrial action are protected from being dismissed or subjected to any detriment as a result.
Do we need to recognise the trade union for them to carry out official strike action?
No, it isn't relevant for the purpose of strike action whether the trade union is recognised or not.
When must the trade union serve notice of the ballot?
At least seven days before the ballot.
What information must be provided by the trade union in the notice?
The notification must contain certain prescribed information:
- that the union intends to hold a ballot.
- the date which the union reasonably believes that the ballot will open.
- a list of the categories of employee to which the employees who are to be balloted belong, figures for the total number of employees who are to be balloted, the number of employees for each category concerned, together with an explanation of how those figures were arrived at.
What is a 'trade dispute'?
A trade dispute is a dispute between workers and their employer which relates wholly or mainly to any of the following:
- Terms and conditions of employment.
- The physical working conditions of any workers.
- Engagement or non-engagement of one or more workers.
- Termination or suspension of employment, or the duties of employment, of one or more workers.
- Allocation of work or duties between workers or groups of workers.
- Disciplinary matters.
- Membership or non-membership of a trade union by a worker.
- Facilities for union officials.
- Machinery for negotiation or consultation, and other procedures, relating to any of the above (including union recognition and union representation rights for a worker).
Should the school know what staff are being asked to vote on?
Yes, the ballot papers should be shared by the trade union at least 3 days before the ballot.
Which members of staff should be balloted?
All members that the union reasonably believe will be induced to take part in any industrial action.
This should be their members, and probably just teaching staff. We have seen some support staff assert that they are affected but this is not clear cut.
Can members of staff who are not affected join in the ballot?
No, it should only be those staff that it is reasonable for the union to believe will be encouraged to participate in the industrial action, to support the 'trade dispute'.
What are the practical arrangements for organising a ballot?
There are balloting rules which must be complied with. Where more than 50 members are entitled to vote, the union must appoint an independent scrutineer (this can be either a practising solicitor, those qualified as auditors of trade unions (subject to certain conditions) or one of a number of specific approved organisations and they have certain requirements to adhere to, to run the ballot.
The ballot must be undertaken at no interference or cost to those voting from the union (even down to the fact that postage stamps should be provided for postal votes).
How much support is needed for industrial action to occur?
For maintained schools and academies in England the following thresholds apply:
- At least 50% of those eligible to vote need to turn out.
- A majority of those voting need to vote in favour.
- At least 40% of those eligible to vote must vote in favour.
When is the ballot result announced?
The union must take reasonable steps to announce the result, and it must be done as soon as reasonably practicable.
The union must announce the result to the relevant employer(s) and employees.
How should the ballot result be announced, and what must it contain?
This can be done by post, email or text message, or even a via union news sheet, notice board or website.
This must include the number of votes cast, the number of yes and no votes, and the number of spoiled papers.
The union must do its reasonable best to make the information provided as accurate as is reasonably practicable in the light of the information in the union's possession, although there is no obligation for the union to supply a list of the employees' names.
How long can the unions rely on the mandate from the ballot?
The union's mandate to call employees out on strike will expire after six months from the date of the ballot meaning that a fresh ballot will be required for further action unless an extension is agreed with the employer. Even with agreement, the mandate will only be extended by a further three months.
For further advice and support, please contact Alice Reeve on 07741 271 363. Alternatively please complete the form below.
This document is provided for general guidance only, and is not intended as specific legal advice for any particular client or transaction.