‘Unions must be able to fight for workers – even if it means breaking bad laws' Len McCluskey, Leader of Unite the Union – Guardian 19 March 2015.

Unite, the Union, has laid down the gauntlet to a future Conservative government. This follows recent proposals by the Conservative Party to place further limits on trade unions ability to call on their members to take part in lawful industrial action (see below). Unite has recently recommended that its rules be changed so that the words ‘…"so far as may be lawful" will no longer apply when its seeks to induce its members to take part in strike action.

Why has Unite taken this radical step? Currently, for a strike to be lawful, a union must ballot its members and gain a simple majority in favour from those who vote.  However, the Conservatives have put forward proposals which include insisting that 50% of union members vote in ballots that approve industrial action.

This proposal is seen by unions as undemocratic has many politicians (particularly local councillors, the Mayor of London etc.) are elected on turnouts which are much less than 50%. None of the other major political parties have indicated that they support this proposal.

If the Conservatives gain an overall majority, the stage is set for a battle royal between Unite and employers if Unite fails to get more than 50% turnouts when balloting for strike action.

In those circumstances, if Unite called its members out to strike an employer would be able to make an application for an injunction. Unite might try and resist such an application and argue that the new legislation breached the Human Rights Act (‘HRA').

However, Unite might be in difficulties because:

(a) the Conservatives have also pledged to abolish the HRA – so Unite would not be able to run a HRA argument; and

(b) even if the HRA was not abolished it is by no means certain that such argument would be successful. Recently in RMT v United Kingdom (2014) the European Court of Human Rights was not prepared to uphold  complaints made by the RMT that the requirements for pre strike notices and the law on ‘secondary action' [industrial action against an employer that is not a party to the trade dispute] were unlawful.

If the Conservatives are elected in power, Unite are likely to have an uphill battle in the courts challenging any further changes made to industrial relations law.

Paul McFarlane is a Partner in Weightmans LLP Employment & Pensions team