Most employers look to avoid industrial action wherever possible, but there comes a time in every unionised employer’s existence where such action is threatened. How should an employer seek to comply with its legal obligations, whilst at the same time implementing a sensible contingency plan, and what steps can be taken to minimise the impact of strike action if and when it occurs?
Introduction
The legal obligations upon an employer in relation to strike action are many and complex. Employees taking strike action will technically be acting in breach of their contracts of employment, but special protection is granted to them provided their union has taken the appropriate steps before calling industrial action.
The first question any employer should ask itself when a strike is threatened is: “Is this industrial action lawful?” If not, then seeking an injunction and ultimately dismissing those taking part may be an option, but the latter will only be defensible if the employer is prepared to dismiss and not to rehire the entire striking workforce. In the vast majority of cases, the action will be lawful and an employer must then consider how it can minimise disruption in other ways.
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Maintaining Open Lines of Communication
Employers facing industrial action must carefully balance the need to maintain relations with both staff and trade unions, whilst at the same time protecting their business. Disputes arise about a variety of things, but in all cases maintaining open and honest communication with employees about why decisions are being made is vital. Employers should ideally engage directly with employees and avoid allowing communications to be funnelled through the trade union with which they are negotiating. There are two key reasons for this. Firstly, the trade union calling industrial action may not represent the entire workforce and so may not be best placed to ensure everyone is kept up to speed with the employer’s thinking. Secondly, and more importantly, the employer will very often be best placed to ensure that the message communicated to the workforce accurately represents its current position. By contrast, disputes can needlessly escalate if a game of Chinese whispers takes place and employees never hear directly what their employer has to say on the issues at hand.
Minimising Impact
It goes without saying that an employer can, of course, seek to make concessions in its negotiating position to avoid a dispute. Such an approach does not merit significant further discussion here, suffice to say that any concession should be made in return for something, whether than be an agreement not to strike or something more.
If negotiation has failed and a strike is inevitable, an employer may want to encourage staff who are being called out on strike to instead attend work. That is permissible provided that care is exercised. Encouragement should not be confused with undue pressure, which could lead to claims that the employer is subjecting individuals to unlawful detriment on grounds of their trade union activities.
As a minimum, employers should take steps to ensure the safety and free passage of anyone who agrees to come to work, and should offer reassurance that any inappropriate conduct by striking workers will be dealt with firmly (see more on this below). If employees are to break the strike, they should ideally feel protected by the employer from any potential backlash.
Employers can consider offering payments to employees who do attend work during a period of strike action. This can be a successful strategy in some cases, but should be approached with caution for three key reasons. First, the employer might encourage more votes for future strike action if it appears to staff that it is then willing to pay them not to go on strike. Second, considerable care will be needed in drafting any documentation which makes the offer of a no-strike “bonus” to avoid appearing to induce staff not to take part in legitimate non-strike related trade union activities, and to ensure that those who are off sick (instead of on strike) can’t benefit. Thirdly, the employer must navigate the complex provisions of 2010 blacklists regulations, which can make any list of employees who took industrial action unlawful. Such a list might in theory be created by omitting names from a list of those who attended work, hence the need for care.
Disciplinary issues
Periods of industrial action can lead to considerable tension within the workforce. This can arise between employees and management or between groups of employees, some of whom have chosen to strike and others who have not. Employers need to act clearly and consistently in relation to any action which breaches internal rules on appropriate conduct. Bullying, harassment and intimidation can and should be dealt with in accordance with the employer’s usual procedures.
Where a period of industrial action is anticipated, this can be a good time for employers to formally remind employees that a zero tolerance approach will be taken to any examples of such conduct. In the event of a major and long-running dispute, plans may need to be made for managers to be made available to speak directly with staff and conduct quick disciplinaries if conduct becomes unacceptable.
Using contingent labour
It is a criminal offence for an employment agency to supply staff for the purposes of performing the roles of employees who are taking part in strike action. It is also an offence if the staff are supplied to perform the roles of others in the organisation who are covering for those on strike. Although the government proposed abolishing this in 2016, that proposal did not make it into the final Trade Union Act 2016.
The restrictions do not apply to other employees of the same employer covering for those on strike. One practical step employers can therefore take is providing management with appropriate training and accreditation to perform the roles of the striking workforce. Employers can also directly hire temporary staff to cover the strike period, although the feasibility of this will depend upon how much knowledge and training is required for the particular role. An employer can also consider buying in from an external provider some or all of the function in which the striking workers are employed for a temporary period. The most common example of this is the wet-leasing of aircraft in the aviation sector, where a route is operated on a temporary basis by a company who lease both aircraft and its crew to the airline facing strike action.
By Tom Kerr Williams is Director in Employment Law and Industrial Relations Expert at PwC
