This is not a post about the employment law implications of Brexit. Obviously there are plenty of those out there – and I’m sure I’ll be writing a few over the weeks months and years that follow. I suspect that it is a subject that will just keep giving.

This post is about a very specific point about the Government’s mandate to make Brexit happen – and a trade union’s mandate to call strike action.

Waiting for the Trade Union Act

The Trade Union Act received Royal Assent back in May – but it still hasn’t been brought into force. We are waiting for Commencement Orders which may bring different provisions in at different times. Some provisions are not yet ready to be brought into force because we need detailed Regulations setting out the details.

Take section 3 for example. That is the provision which requires industrial action ballots by those delivering ‘important public services’ to be supported by at least 40 per cent of those entitled to vote (as well as having the 50 per cent turnout required by S.2). The Act does not define important public services. That is left to Regulations which are yet to be drafted. All we know is that the specifies that the Regulations are limited to the areas of health, education, fire, transport, border security and the decommissioning of nuclear installations and management of nuclear waste and spent fuel.

If course it is likely that officials at the Department for Business are a bit preoccupied with other matters at the moment, so producing these Regulations will not be a huge priority for them.

But I think that there is a bigger problem. There is an awkward fact about this provision that, If I were a Minister, I would not want to draw attention to.

The 40 per cent threshold

Lets do some maths.

Suppose you are a union in an important public service and you hold a nationwide ballot to ask your members to support industrial action. Let’s say the ballot goes really well and gets a turnout of  – let’s pick figure at random – 72%.

But suppose the issue is quite controversial and not all members support it. Let’s say they support industrial action but not by that much. Perhaps with just – oh I don’t know – 52% of those voting ticking the ‘yes’ box to  support action.

To see whether strike action would be legal we need to see that 52% expressed as a percentage of those entitled to vote. What is 52% of 72%? Well its just 37.4 per cent.

So as far as this Government is concerned, a ballot where 52% support strike action on a turnout 72%  would not give sufficient democratic legitimacy to justify train drivers introducing a work to rule or teachers holding a one-day strike. However we are about to  put our economy, security and place in the world in jeopardy to give effect to a referendum where, on a 72% turnout, just 52% voted to leave.

Doesn’t that seem a bit ridiculous?

If I were a Minister, I would not be keen to introduce the Regulations that will give effect to s.3. In fact, I would want everyone to forget that s.3 even existed.  If the timetable for implementing the Trade Union Act were to slip somewhat, I wouldn’t be at all surprised.