Dealing with strike action: a practical guide for employers

 

The news that up to 750,000 public sector workers have agreed to commence strike action on 30 June 2011 is no surprise to many. The fifth largest trade union, the Public and Commercial Services Union has announced that 290,000 of its members intend to strike, which will affect a wide range of services. The National Union of Teachers and the Association of Teachers and Lecturers has also voted for strike action to protect teachers’ pensions. The strike action will purposely coincide with the other public sector strikes due to take place on 30 June 2011.

And industrial action will continue to loom large, beyond the end of this month. With unions threatening industrial action in response to public sector employers' plans to change employment contracts, restructure or outsource, employers need to be aware of their rights and options in relation to strike action: both in relation to prevention, where possible (via an interim injunction) and management of the situation, when a strike goes ahead. 

In this article we consider…

• What is ‘industrial action’?
• When is it actionable?
• Scrutinising the ballot process
• Is the action official or unofficial?
• Injunctions to prevent strike action
• What else can employers do in response?

For further information please see also our September 2010 article, Are you ready for action?

What is ‘industrial action’?

There is no statutory definition of industrial action, but, as a general guide, any concerted action which is taken in order to put pressure on an employer is capable of being industrial action.  The term covers the refusal by a group of employees to do anything (whether or not in breach of contract) as a bargaining weapon.  Like the proverbial elephant, it is a case of Courts ‘knowing it when they see it’.

However, there are two basic types of industrial action:

• a strike, which is an outright stoppage of work; or
• other industrial action short of a strike which can include: an overtime ban; call-out ban; go slow; work to rule; work-in; or sit-in.
  

When is it actionable?

If a trade union instructs its members to take industrial action it may commit the civil wrong of inducing a breach of contract. Whether in any particular case it does so will depend on what it is asking its members to do. An instruction to members not to attend work will almost certainly be potentially actionable, as that will amount to a breach of contract on the part of the employees concerned.  That will be the case whether the action is a short stoppage – say for a day at a time as has been the pattern in recent London Underground strikes and which seems to be the approach the public sector unions envisage here – or open-ended.  Action short of a strike may be a breach of contract – as would be the case in a go-slow or an overtime ban – or it may not. A work to rule is an example of where the line is finely drawn: action which takes the form, for example, of taking a rigid approach to hours by arriving and leaving on the dot would probably not be a breach of contract.  Therefore, even if a trade union organised such action, the employees concerned are not in breach of contract, so neither they nor the union have done anything wrong.  Another finely drawn distinction in the context of action proposed in response to the current cut-backs, is whether or not the dispute can be said to be with the employer (and therefore a protected trade dispute) or whether it is a protest directed at government policy or proposed legislative change, which may well not be.

Scrutinising the ballot process

Carefully consider whether the notice to the employer of the intention to ballot complies with the strict legal requirements. For example, does the notice contain all of the required information, such as the opening date and numbers and categories of employees to be balloted? Is this information ‘as accurate as is reasonably practicable’?

A sample ballot paper must be provided no later than the third day before the opening day of the ballot. Check that this has been received, and that the wording on it exactly reflects the requirements of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).  For example, does the ballot paper:
 

• state the name of the independent scrutineer and the address to which the ballot paper must be returned
• ask if the employee is prepared to take part in the industrial action (on a ‘yes / no’ basis)
• specify who is authorised to call on members to take part in industrial action
• warn employees that participation in the strike may be a breach of the employee's employment contract; and
• does the proposed action correspond with the question asked on the ballot paper?
  

There are strict timetables for the balloting steps and these must be adhered to.

In December 2009, in British Airways plc v UNITE, British Airways successfully obtained an injunction preventing a 12-day strike where UNITE had failed to take reasonable steps to establish the identities of redundant employees who were leaving BA before the strike and prevent them from voting in the strike ballot. Even though support for the strike was overwhelming and the numbers of leavers who were not balloted would  not have changed the result at all, the failure was still fatal to the legality of the strike. 

However, BA were not so fortunate in their more recent attempt to obtain an injunction to stop a strike: in British Airways plc v Unite the Union  in May 2010, the Court of Appeal refused to grant an injunction when Unite had failed to provide statutory information by direct communication to all members.   The Union had made the information available by various means, such as posting the statutory information on a website, by text and by notices in areas used by the employees concerned. The Court of Appeal said that this was enough to satisfy the requirement in section 231 of TULRCA that the union must take such steps as are ‘reasonably necessary’ to ensure that information regarding the ballot is communicated to members.

For more information on scrutinising the ballot, please see our June 2010 article, Summer of discontent

Is the action official or unofficial?

This question is important as it will govern who is the proper defendant to any potential legal action by an employer. It is also relevant to the position of the employees themselves (see below, under ‘what else can employers do in response?’).

If the action has been organised by the trade union and its members have been balloted then it will almost certainly be official action. If the formalities have not been complied with and it appears to be driven by a local official or ‘shop steward’ then, insofar as any threats have been made, the union may be called upon to repudiate or disown the action. There are strict requirements on what it must do in these circumstances and, to the extent these are not met, the action will be deemed official  and the union itself the proper defendant to any action.

Injunctions to prevent strike action

The balloting and notification procedures that must be adhered to in TULRCA are generally strictly enforced. Where they are adhered to then the union will be generally immune from liability.  If TULCRA has not been complied with, the main remedy is to apply to the Court for an interim injunction to prevent the strike. The injunction will usually be made against the Trade Union as the person inducing the breach of contract by the employees concerned, unless the action is unofficial and repudiated, in which case it is the union official who will be committing the unlawful act.

There are a number of steps required and factors to consider.

1. Prepare a letter before action addressed to the Trade Union. The letter will set out why you oppose the strike action and why you feel that there is a legal basis which will persuade the court to grant an injunction to stop the strike. This is an important strategic step as it is likely to be the first notice that the Trade Union will have of your formal opposition to the scheduled strike action.
2. Timing will be important.  If the result of the ballot is in favour of strike action then the union must have complied with its obligations to notify the employer of the outcome and give at least seven days notice of any call for industrial action, so you will need to move quickly.
3. Following an unwillingness to cancel or postpone the strike action, the next step is to apply to the court via an application notice.
4. When filing the application notice at court, you must also file a witness statement as evidence. The statement should be drafted by the person best placed to convey the likely impact on the organisation and who can explain why it is seemingly unlawful. You will also have to explain why damages for breach of contract are not enough to compensate you for the loss and harm you sustain. In industrial action cases, the courts will usually be receptive to the argument that the disruption to services and in particular the harm sustained by third parties – patients in the case of action in the NHS or service users in a local government context – is not easily capable of being quantified in monetary loss, but it is still an area you must address. 
5. When the application has been drafted, and the witness evidence finalised, then the papers should be submitted to court ideally as soon as possible and at least 3 clear days prior to the commencement date of the scheduled strike action. If this is not possible then you may still apply, although the procedures are more complex and any injunction granted is likely to be only for a short period, until the matter can be properly heard with all parties present and time limits observed.
6. If the application to the court is successful, circulate the Court Order as soon as possible to the Trade Union so that they are aware that strike action will now be unlawful if it goes ahead as planned.  However, the timing of the injunction (and even any threat) is very important.  You may not wish to threaten an injunction while the union has the opportunity to correct the procedure.

What else can employers do in response?

Legal remedies against employees for taking industrial action are limited: notably, the court cannot order an employee to work or even to attend the workplace. However, employers may legitimately withhold all or part of employees' pay if they are in breach of contract and may also dismiss some or all of them, depending on the circumstances.

1. The unfair dismissal rules in this context are complex and depend on whether the industrial action is ‘unofficial’, ‘official’, or ‘protected’.  In brief, employees dismissed while taking part in unofficial industrial action (i.e. where it is not authorised or endorsed by a union) cannot normally claim unfair dismissal, even if the employer is selective about whom it dismisses.  Employees dismissed while taking part in official industrial action can only claim unfair dismissal if there is selective treatment (i.e. where the employer selectively dismisses or re-engages staff) or if the action is protected by virtue of a lawfully-organised union ballot.   Where the industrial action is ‘protected industrial action’ (i.e. the union has complied with the balloting and notification requirements) the rules are more complicated and there are protected periods of time during which any dismissal would be unfair.
2. Suppliers, customers and / or service users should be notified, if they are not already aware of the date via the media. Consider the potential impact upon them that this industrial action may have.
3. In extreme circumstances it may be necessary to close the business / service for the day. However, if this can be avoided then a suitable 'skeleton service' should be used. It will also be necessary to prepare for the risk that some staff may call in sick that day.
4. Keep informed of the progress of the strike action. Strict procedural steps must be followed and may form the basis of a challenge should they be flouted. Collate evidence where possible.
5. Agency staff must not be used to cover the work that would have been undertaken by employees on strike.  It may, however, be possible to use directly employed temporary staff and / or outsource service provision to a third party.   

Bevan Brittan's industrial action team

Bevan Brittan LLP's specialist industrial action team, has experience of advising on all aspects of industrial disputes, including obtaining urgent injunctions to prevent action from taking place.  Please contact a member of the team (contact details below) for more information.