Strikes: A summer of discontent
Now is the summer of our discontent…strikes in the rail industry have been followed by strikes and the threat of strikes in aviation, legal, education, health, communications and emergency services sectors. The combination of a recruitment crisis, insuperable levels of inflation and a huge cost of living increase has caused disruption and discontent across many sectors, leading to industrial action.
Industrial action is generally any concerted action, which is taken in order to put pressure on an employer. Industrial action, whether through strike or something short of strike, is incredibly disruptive for businesses as well as consumers and customers. Your options for dealing with industrial action will depend on the nature of the action being taken and whether it has been organised properly and officially by a trade union.
Most forms of industrial action will amount to a breach of contract by the employee and your options for taking action against Union or against the employee will ultimately depend on whether the action is official or unofficial.
For action to be official and for trade unions to be immune from claims for persuading staff to breach their contracts, certain conditions must be met; including:
- The industrial action was taken “in contemplation or furtherance of a trade dispute”
- The action has the support of a properly organised ballot of union members
- The union has complied with notification requirements.
The union will need to ensure they comply with the procedural requirements for organising industrial action, otherwise the employer will have grounds to seek an injunction to prevent the action going ahead, or seek damages.
Legal remedies against the employees for taking industrial action are limited: notably, the court cannot order an employee to work or even to attend the workplace (section 236, TULRCA). As for damages, the practical difficulties of establishing the precise extent (if any) of the loss caused by each individual effectively precludes this as an effective remedy. This is to say nothing of the likely effect on the company’s public image of pursuing its employees through the courts in this way.
However, industrial action can affect individual employees’ rights in a number of ways:
- The employer may legitimately withhold all or part of employees’ pay if they are in breach of contract.
- Unless the action is “protected”, the employer may dismiss some or all of them with or without notice, depending on the circumstances;
- Industrial action may also affect an employee’s continuity and the right to redundancy pay.
- Non-participating employees may also be affected as there might be a reduction in the need for them to work, resulting in lay-off or even redundancy.
When it comes to managing the business during industrial action, at present, it’s unlawful for an employment business to supply agency workers to perform the duties normally done by a worker that is on strike or to carry out the duties of a worker that has been assigned to cover the striking worker. However, the government has indicated an intention to remove this restriction and permit agency workers to be employed to cover strikes. That said, there is concern over how effective such measures will be and the difficult position it will put employment businesses in, as they will be disrupting and negating the effect of the strike, which has a knock on effect for the agency staff they place.
Employers will need to make contingency plans to enable work to continue and take into consideration that the absence of workers on strike may not affect only their work but that of others that are not taking part in industrial action.
Options for continued operations during industrial action include:
- Use existing employees from other parts of the business or existing casual workers (provided their usual work is not then done by agency workers for the duration of the strike).
- Directly employ temporary staff on a short-term basis without the use of an agency
- Carry on using agency workers already supplied by an employment business to do the work they were originally supplied to do.
- Use any workers (whether or not they are agency workers) to replace workers who leave or are absent during a strike but who are not participating in the industrial action, such as those on family leave, sick leave or annual leave.
- Temporarily outsource affected business functions to a third-party contractor.
- Use agency workers after the strike is over to clear any backlog.
Employers should avoid the following unless they are sure the strike is unofficial:
- Engaging agency workers to do the work of striking workers.
- Engaging agency workers to do the work of other employees who have been reassigned to cover striking workers.
- Re-assigning agency workers who were supplied to do other work, so that they are now doing either of the above.
Author: Sarah Edwards, Senior Employment Law Advisor at Howarths