Ballot thresholds



For all ballots opened on or after 1 March 2017, there are now two thresholds, depending whether the majority of balloted workers are carrying out an “important public service”.


• Ballot threshold for all strikes other than in “important public services”:


For all industrial action ballots opened on or after 1 March 2017 except those in which the majority of workers carry out an “important public service”, industrial action is not lawful unless at least 50% of those entitled to vote in the ballot did so, and a majority of those voting are in favour of the action (section 226(2A), TULRCA, section 2, TUA 16). In other words, a failure to vote amounts to a vote against the action.


This change to the law replaces the previous requirement for a simple majority to vote in favour. 



• Ballot thresholds for “important public services”:


For industrial action in which a majority of workers carry out an “important public service”, a higher ballot threshold applies. For all ballots opened on or after 1 March 2017, industrial action is not lawful unless at least 50% of those entitled to vote in the ballot did so and at least 40% of those entitled to vote in the ballot voted in favour (section 226(2B), TULRCA, section 3, TUA 16).



There are six categories of “important public service” (section 3, TUA16): health services, education of under- 17s, fire services, transport services, nuclear decommissioning and border security.


There are five sets of Important Public Services Regulations 2017 – one for each category except nuclear decommissioning, for which regulations have yet to be drafted. Non-statutory guidance on the regulations was published in January 2017.


Here are the services included in each category: 



• Health services: emergency ambulance services, including ambulance drivers, ambulance control room services and treatment by paramedics; hospital A&E; hospital-based high dependence and intensive care units; hospital-based psychiatric services for conditions requiring immediate attention to prevent serious injury, serious illness or loss of life; and hospital-based obstetric and midwifery services for conditions requiring immediate attention to prevent serious injury, serious illness or loss of life. As well as public hospitals, the definition captures private hospitals that mainly provide publicly funded health services; 



• Education of under-17s: teaching and other services provided by teachers and head teachers except at fee-paying schools;



• Fire services: services by fire-fighters in extinguishing fires and protecting life and property in the event of fires, including services provided by fire and rescue authority personnel in dealing with calls for emergency help and organising the response (both public and private sector);


• Transport services: London local bus services, passenger railways (including underground, metro and tramway), civil air traffic control, airport and port security services involving access to secure areas, screening, search and patrol activities. Both public and private sector workers are caught. Passenger railway services include services for the carriage of customers by rail or tramway, maintenance and repair of trains and network, signalling or controlling, and “any station services that are essential to enable passenger trains to operate safely and securely”. Eurotunnel is excluded;



• Border security: examining people who enter and leave the UK (Immigration services), examining goods for import or export (customs); patrol by sea; collection of security data for the purpose of carrying out immigration, customs and border patrol duties; direction or control of any of these functions by a border force officer.


(Section 226(2E), TULRCA, section 3 TUA16, five sets of Industrial Action (Important Public Services) Regulations 2016) 



The 40% threshold must be met when a majority of workers involved in the trade dispute carry out an “important public service”. Unions have a defence if they had a “reasonable belief” that workers were not engaged in “important public services” (section 3(2), TUA 16).



The non-statutory government guidance says that workers with multiple duties who spend only part of their time delivering an important public service and the rest of their time on other responsibilities will only be regarded as delivering an important public service if they are “normally engaged in delivering this service”, and that “it is for the union to consider, when deciding to conduct the ballot, what is normal in the specific circumstances of their sector or workplace”, and “whether they hold sufficient information to reasonably believe whether or not a majority of workers are normally engaged in important public services”.


The guidance lists some (non-exhaustive) factors for unions to consider when deciding whether someone “normally” engages in delivering the “important public service”.


An earlier proposal to ballot “ancillary workers” at the new higher threshold was abandoned during the Bill’s passage.