At the moment in Britain, there is no lawful right to strike or take industrial action. This is not because of a new anti-union law (which the Tories promised in their 2019 general election manifesto) or even because of an existing anti-union law (of which they are many).

Instead, it is because in the midst of the coronavirus crisis, the government designated balloting organisations like Civica Election Services (formerly Electoral Reform Services) are no longer able to take and process requests from unions for ballots to be organised.

This is because the ballots are postal ballots. They are mandatory under the Trade Union Act 1984 and the only form they can take is the postal form. The ballot papers have to be despatched to home addresses of union members, filled in, posted back, opened, counted and then the result verified. 

But at this moment, those balloting organisations are following government advice on the safety for employees in terms of social distancing and public safety. This situation has gone on for a number of weeks. 

This bizarre situation is entirely unnecessary. When the last round of trade union laws were being drawn up, trade unions specifically requested that provisions for electronic voting be included in the bill. In the years since, those calls have continued – but without success.

Electronic voting would still involve some element of risk to the employees of the balloting organisations (given that they would still have to work together to some degree), but the level of contact would be much lower. A small number of employees could work at distance from each other to send out and collate the returns.

Organisations like Civica conduct electronic balloting and have done so for nearly twenty years for a variety of organisations. But even though the government commissioned its own review in 2017 into the feasibility of using electronic balloting for strikes and industrial action ballots, the recommendation from the review to conduct a pilot study to test feasibility has not been taken up.  

Consequently, this means that all of the fifty or strikes so far in response to coronavirus issues in the workplace (over social distancing, personal protective equipment, washing facilities and so on) have been unofficial strikes and have probably also been unlawful. 

There is a little bit of ambiguity here. Workers can invoke the safe work protocol if they believe, under the Management of Health and Safety at Work Regulations 1999, that their work situation represents a threat of ‘serious or imminent danger’ to their safety. This entitles workers to remove themselves to a place of safety. But in the cases of these walkouts, employers have, of course, protested that their employees were not unsafe.

Unions like the Communication Workers Union (CWU) and the Rail, Maritime and Transport (RMT) union have not only pledged support for their members walking out in these situations, but issued guidance to say that their members should pursue that course of action in a number of circumstances.

However, that does not mean that any of the walkouts have been declared as official disputes because to do so could mean unions being found in contempt of court and fined if employers won injunctions against them for taking action without a ballot. And the fines can be steep.

But even if balloting for industrial action was to take place electronically at the moment, this would not resolve the legal grey area. The process of balloting also requires that, for example, advance notice (14 days) is given to employers about when the action will take place, who will take it and where it will be held.

In situations of critical health and safety concerns – like those faced by many workers during the current coronavirus crisis – workers need to be able to walkout immediately and with the full protection of the law. At present, they enjoy no such rights.

But what about union members wanting to take strike or industrial action to defend and advance their terms and conditions of employment? The month of April is the traditional date for the settlement of annual pay awards determined by collective bargaining. This has serious and immediate implications.

Due to the ongoing lockdown, union members subject to these collective bargaining agreements have effectively no recourse to take lawful industrial action to create the leverage needed to win their demands in pay negotiations. That is the reality of Britain’s draconian anti-union laws.

All this points towards the need for the repeal of the anti-union laws. This means not just the Trade Union Act 2016, which increased the thresholds of support needed in a ballot, but much broader changes which must include a positive right to strike codified in law for workers.

At the moment, the law is based upon the Trade Disputes Act 1906 which gives unions the so-called ‘legal privilege’ of not being sued by employers for loss of business in a dispute so long as the dispute is a ‘trade dispute’ and conducted according to subsequent laws. As we can see from the predicament currently facing workers – such minimal protections are not enough.