Diane Nicol: Practical and legal reasons not to fear 'winter of discontent'

It's estimated over 29 million working days were lost in that period due to strike action.

Thirty years later and there are reports that at its annual conference, the TUC will call for national protests and co-ordinated strike action, aimed at causing maximum disruption, in protest at the Government's proposed public sector job cuts. As Bob Crow, the RMT's general secretary calls for a "fightback" against the coalition's decision to launch "all-out class war" on the public sector, is there a danger of the country returning to those dark days of the 70s?

David Cameron is trying to engage the unions in dialogue but relations between the Tories and the unions remain frosty - not least because of the impact on the unions of the Thatcher Government's response to the winter of discontent. Mrs Thatcher's government's changes in the law made it more difficult for the unions to take strike action and almost impossible for them to engage in "political" strikes.

New Labour did little to restore union power, for which the coalition will be grateful. It should be remembered that the winter of discontent also took place against a background of mighty unions having effectively brought down the Heath government earlier in the decade. Today, despite a surge in industrial action over the last year, the unions appear to have considerably less muscle.

In 2010, to avoid significant liability for the unions and the risk that strikers will be dismissed without recourse to the employment tribunal and the courts, any industrial action must be closely connected to a strictly defined 'trade dispute' with the employees' employer. A stringent balloting process also needs to be followed. A purely political strike which does not have at its heart a trade dispute will not attract protection for the unions or the striking employees.

Consequently, employers would be well advised to monitor the unions' threats about industrial action, any statements made and motions passed at the TUC Congress. These could provide useful evidence for employers to argue that the unions and their employees are engaging in unlawful political strikes which, even if employers don't want to fight this out in the courts, could be used as a bargaining position privately with the unions. Thanks to Thatcher's union reforms, secondary action is also outlawed - so no more flying pickets.

As we have seen from the recent British Airways/Unite experience, the courts can be tough on unions who fail to comply with the balloting rules - although the most recent challenge by BA to the process followed by Unite did go the union's way. That said, neither side in that dispute appears to be the winner with more strike and court action threatened.

There are practical, as well as legal reasons, why a repeat of the winter of discontent is unlikely. Many employees are more debt ridden than in the 70s and prolonged periods of no pay - strikers don't get paid - are not a realistic option. This may explain the fashion for shorter stoppages while an already difficult economic climate also means less public sympathy for strikers.

Nevertheless, employers are likely to see increasing unrest in the months ahead - though not to the levels of the 70s. Over the coming months, employers would do well to look at their dispute resolution processes to avoid industrial action; cement, where possible, their union relationships; and monitor union rhetoric for ammunition to challenge the legality of any future threatened industrial action.

lDiane Nicol is head of UK employment at McGrigors LLP