Guidance

Explanatory memorandum to the proposed consequential revision of the code of practice on picketing

Published 16 January 2024

Applies to England, Scotland and Wales

1. Introduction

1.1 This explanatory memorandum has been prepared by the Department for Business and Trade and is laid before Parliament by Command of His Majesty.

1.2 This explanatory memorandum is for the proposed consequential revision of the Code of Practice on Picketing (“the code on picketing”). A draft of the revised code on picketing has been laid before each House of Parliament.

2. Purpose of the revision of the code on picketing

2.1. In accordance with section 205(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the code on picketing is to be revised for the purpose of bringing it into conformity with section 234E of the 1992 Act (Work notices: no protection if union fails to take reasonable steps). Section 234E was inserted into the 1992 Act by the Strikes (Minimum Service Levels) Act 2023 (“the 2023 Act”).

2.2 See paragraph 6 below which sets out the relevant legislation in more detail.

3. Matters of special interest to Parliament

3.1. None

4. Extent and territorial application

4.1 The extent of the revised code on picketing (that is, the jurisdiction(s) which it forms part of the law of) is England and Wales and Scotland.

4.2 The territorial application of the revised code on picketing (that is, where it produces a practical effect) is England and Wales and Scotland.

5. European Convention on Human Rights

5.1 As the revised code on picketing is subject to negative resolution procedure and does not amend primary legislation, no statement is required.

6. Legislative context

6.1 The 2023 Act amends the 1992 Act so that minimum service levels can be applied during strikes in services within six key sectors. These are:

a. health services

b. fire and rescue services

c. education services

d. transport services

e. decommissioning of nuclear installations and management of radioactive waste and spent fuel

f. border security

6.2 Minimum service levels are provided for via regulations made by the Secretary of State under section 234B of the 1992 Act, specifying the minimum service levels and the service(s) they apply to.

6.3 The 1992 Act provides that, where a trade union gives an employer a notice of strike action under section 234A, which relates to services specified in regulations, the employer may issue a work notice identifying persons who are required to work and the work they are required to carry out during the strike to secure minimum levels of service.

6.4 Once a work notice has been given to a trade union in accordance with section 234C of the 1992 Act, section 234E of the 1992 Act requires that union to take “reasonable steps” to ensure that all members of that union who are identified within the work notice comply with the notice. This will enable that union to maintain statutory protection from proceedings in tort brought by the employer in relation to an act done by the union to induce a person to take part, or to continue to take part, in a strike. Such proceedings could include the employer seeking damages from the union or an injunction to prevent the strike action taking place.

6.5 If a trade union fails to take reasonable steps, this would mean that the strike is not protected under section 219 of the 1992 Act, so an employee taking part in that strike, who was induced to strike by that union, would lose automatic protection from unfair dismissal under section 238A of the 1992 Act (regardless of whether they were identified in a work notice or not). This aligns with other requirements in the 1992 Act, such as balloting requirements.

6.6 The code on picketing is to be revised under the power conferred by section 205(1) of the 1992 Act. The proposed consequential revision of the Code on Picketing is for the purpose of bringing it into conformity with section 234E of the 1992 Act. In accordance with section 205(2) of the 1992 Act, a draft of the revised Code on Picketing is being laid before each House of Parliament. In the event that neither House resolves within 40 days that no further proceedings should be taken on the draft revised Code on Picketing, it will be brought into effect by order made by statutory instrument (section 205(4) of the 1992 Act).

6.7 Guidance for trade unions on what “reasonable steps” they should take in order to comply with section 234E of the 1992 Act is set out in the statutory Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels) (“the Code of Practice on Reasonable Steps”), which was approved by Parliament on 6 December 2023 and came into effect on 8 December 2023. Step 3 relates to picketing. The proposed revision of the code on picketing signposts readers to the code of practice on reasonable steps, without incorporating it into the code on picketing.

6.8 The code on picketing was previously revised to include references to the requirement to appoint a picket supervisor contained in section 220A of the 1992 Act (which was inserted by section 10 of the Trade Union Act 2016 (Union supervision of picketing)).

7. Policy background

What is being done and why?

7.1 The 2023 Act was passed to ensure there is a reasonable balance between the ability of workers to strike and the rights of the public to access essential services when they need them. Consequential revision of the code on picketing is required to bring it into conformity with section 234E of the 1992 Act (as inserted by the 2023 Act).

Explanations

What did any law do before the changes to be made by this revision to the code on picketing?

7.2. The code on picketing provides practical guidance on picketing in trade disputes for those:

• contemplating, organising or taking part in a picket or activities associated with picketing, such as assemblies or demonstrations; and/or

• employers, workers or members of the general public who may be affected by a picket or any associated activities.

Why is it being changed?

7.3 As set out above, once a work notice has been given to a trade union in accordance with section 234C of the 1992 Act, section 234E of the 1992 Act (as inserted by the 2023 Act) requires that union to take “reasonable steps” to ensure that all members of that union who are identified within the work notice comply with the notice. Guidance for trade unions on what “reasonable steps” they should take in order to comply with section 234E of the 1992 Act is set out in the code of practice on reasonable steps. Step 3 relates to picketing.

7.4 While the 2023 Act does not expressly refer to picketing, section 234E and section 219 of the 1992 Act are clear that a union which fails to take reasonable steps to ensure that all members identified in the work notice comply with the notice, will lose its protection from certain liabilities in tort. The government therefore considers it would be difficult for a union to comply with the requirement to take reasonable steps without moderating its picketing activities in any way. Consequential revision of the code on picketing is therefore required to bring it into conformity with section 234E of the 1992 Act.

What will it now do?

7.5 The revised code on picketing will continue to provide practical guidance on picketing in trade disputes. It will now incorporate a ‘signpost’ reference to the code of practice on reasonable steps, which, as set out above, provides practical guidance on the requirement on trade unions to take ‘reasonable steps’ under section 234E of the 1992 Act. The code of practice on reasonable steps is not incorporated in the code on picketing.

8. European Union withdrawal and future relationship

8.1 The revised code on picketing does not relate to withdrawal from the European Union / trigger the statement requirements under the European Union (Withdrawal) Act

9. Consolidation

9.1 The revised code on picketing does not consolidate any legislation.

10. Consultation outcome

10.1. The revision of the code on picketing has not been consulted on as it is consequential on section 234E of the 1992 Act (inserted by the 2023 Act). In addition, the revision consists of a ‘signpost’ reference to the code of practice on reasonable steps, which was consulted on.

10.2 The consultation on the draft code of practice on reasonable steps was published on 25 August 2023. 46 responses were received, 10 from individuals and 36 from organisations, primarily consisting of trade unions, employers and public bodies. Following consideration of responses, a number of changes were made to the draft code of practice on reasonable steps before it was laid in Parliament for approval on 13 November and subsequently approved by Parliament on 6 December.

See the government response to the consultation on the code of practice on reasonable steps.

11. Guidance

11.1 The code on picketing is itself guidance. Relevant stakeholders are referred to the content of the code on picketing, as this provides the guidance on picketing.

12. Impact

12.1 There is no, or no significant, impact on business, charities or voluntary bodies. This is because the revision of the code on picketing is consequential on section 234E of the 1992 Act (inserted by the 2023 Act).

12.2 There is no, or no significant, impact on the public sector. This is because the revision of the code on picketing is consequential on section 234E of the 1992 Act (inserted by the 2023 Act).

12.3 A full impact assessment has not been prepared because the revision of the code on picketing is consequential on section 234E of the 1992 Act (inserted by the 2023 Act). The impacts of minimum service levels are considered in the impact assessments for the regulations made under section 234B of the 1992 Act for specific services and the impact assessment produced in relation to the 2023 Act.

13. Regulating small business

13.1 The legislation applies to activities that are undertaken by small businesses.

14. Monitoring and review

14.1 The approach to monitoring of the revised code on picketing is to consider how minimum service levels operate when strikes take place, and the extent to which enforcement activity is undertaken to ensure the revision to the code on picketing is taken into account.

14.2 The revised code on picketing does not include a statutory review clause.

15. Contact

15.1 Victoria Judd at the Department for Business and Trade, Victoria.judd@businessandtrade.gov.uk can be contacted with any queries regarding the revised code on picketing.

15.2 James Stevens, Deputy Director for Employment Rights and Enforcement, at the Department for Business and Trade can confirm that this explanatory memorandum meets the required standard.

15.3 Minister Hollinrake at the Department for Business and Trade can confirm that this explanatory memorandum meets the required standard.