04/11/2022
With public service employers anxiously awaiting the outcome of ballots by the RCN and the PCS in the next few days, industrial action already taking place elsewhere in the public sector, and ballots expected from several other public service unions shortly, it is timely to revisit the subject of industrial action.
We have set out a brief overview of a few of the key things that employers will need to consider in the face of potential industrial action.
What is industrial action?
There is no statutory definition for industrial action. However, as a general guide any concerted action to put pressure on an employer is capable of being industrial action. This includes employees refusing to do anything, whether or not in breach of contract, as a bargaining weapon.
There are two basic types of industrial action - namely:
- A Strike – which is the outright stoppage of work; or
- Other industrial action short of a strike. This can include a wide variety of actions including
- an overtime ban
- a call out ban
- go slow
- work to rule; and
- work in or sit in
Industrial action can be divided into three categories, unofficial, official and “protected” action. This categorisation results in different levels of legal protection for employees and practical options for employers.
Industrial action will be official as regards an employee where
- the employee taking part is a member of a trade union and it is authorised or endorsed by that trade union; or
- if the employee is not a member of a trade union, there are members of a trade union taking part and it is authorised or endorsed by that trade union; or
- none of the employees taking part are members of a trade union
For the action to then be “protected” it must be lawfully organised by a trade union which has the support of a properly organised ballot of its union members and has complied with all of its notification requirements. If the action is protected, it will increase the level of protection provided to the employees involved, including some protection from dismissal.
Unofficial action is any industrial action that does not fall in to the categories above and means there is less protection from detriment for the employees involved.
Preparing for industrial action
Where a union is organising industrial action, it will be particularly concerned to ensure that the action is protected, to avoid liability for inducing employees to breach their contracts with their employers. Employers can therefore expect unions to comply with balloting and notification requirements.
Once a union has properly balloted its members, notice of industrial action must be served on the employer at least 14 days before the industrial action is due to start (unless the union and employer agree that it can be provided seven days before).
Whilst the union is not required to name the staff who will be called upon to take part in the industrial action, it must provide other details as follows:
- The categories of employees concerned
- The number of affected employees in each category
- The workplaces at which they work and the number of them at each workplace
- The total number of affected employees; and
- An explanation as to how these figures have been reached.
Engagement with the unions
Maintaining good communication with the union in the lead up to any industrial action is vital.
The employer should seek to discuss and agree with the union any particular areas that should be exempt from industrial action in order to maintain essential services (for example where safe patient care or continuous operation of plant and machinery is required). Employers are entitled to make clear that if the union is not prepared to engage in such discussions then the employer will contact staff directly for this purpose.
Where staff have professional obligations that may be affected by industrial action (for example the obligation of clinical professionals to maintain patient safety) it may be appropriate to highlight these so as to ensure they continue to be met. In extreme circumstances, individuals may be subject to criminal sanctions if they strike knowing the probable consequence of doing so will endanger life or cause serious injury.
Engagement with individual employees
It remains a personal decision for a member of staff whether to take part in industrial action or not. However, there is nothing to prevent employers from seeking to discourage staff from taking part or from asking staff whether they intend to take part so as to make contingency plans.
On that basis, we suggest that:
- Individuals are asked to confirm whether they will take part in the action
- Management is consulted as to whether there are adequate staff levels to run essential services or maintain safe patient care
- Arrangements for cover are agreed with individual staff – reminding them of their professional obligations
Where members of staff are subject to professional and legal duties (for example as healthcare providers), holding such conversations may be more important and be more likely to bear fruit.
Arranging cover
Employers may make arrangements to ensure that the number of staff that have prearranged absences on any industrial action day is kept to a minimum. This can include rearranging study days, managing those working from home and only permitting annual leave where absolutely necessary.
Employers may wish to prioritise services into those that are essential and non-essential. It should be ascertained whether there are individuals who are not involved in industrial action that have the skills to be transferred to cover essential services.
Cover arrangements may include:
- Asking individuals to perform overtime
- Arranging cover from locums or bank staff directly; and
- Accepting support from volunteers
A recent change in the law also means that employers can now arrange, via an agency, for workers to cover the duties that would normally be performed by those on strike. Such an approach would not come without its own risks and complications, however, and we have addressed this in more detail in a separate article on this topic. For more information of the changes and considerations please see Agency workers – the solution to strike action? | Bevan Brittan LLP.
Picketing
Employers should seek to agree guidelines for picketing with the union on a local basis. The lawful purposes of picketing are to communicate information and to persuade others to join the industrial action. However, this must be carried out in a peaceful manner and the behaviour of those picketing should not be threatening or amount to harassment.
By law there must be a picket supervisor appointed who is either a trade union official or a member of that union who will oversee the picket. Where more than one union is picketing, each union must appoint its own picket supervisor.
The BEIS Code of Practice on picketing Code of Practice: picketing - GOV.UK (www.gov.uk) sets out that organisers should limit the numbers of those who are on the picket line – recommending that it should not exceed six outside of any entrance or exit from a work place (but in many cases a smaller number would be appropriate).
There is no entitlement for picketing to take place on the employer’s site itself and therefore an agreement should be reached as to where ‘near’ the site it should take place. This may be of particular importance where the site itself is involved in delivering services to clients, customers or patients.
Pay and partial performance
Staff are not entitled to be paid for any days they are absent from work due to industrial action nor are they permitted to use their annual leave to participate.
The employer should:
- Issue clear guidance on how staff must report their absence that day including for those who are absent for unrelated reasons (such as sickness absence). Employers are permitted to require proof of absence for any staff that are absent that day.
- Make clear from the outset whether or not the employer is prepared to accept partial performance of shifts or contractual duties for those intending to strike or engage in other forms of industrial action. This may be a particular consideration where service requirements are a concern.
- If it is decided that partial performance will not be accepted, make clear to staff that pay will be deducted for the full day that they participate in strike action and that any attendance at work that day will be considered to be on a voluntary basis only.
Where industrial action short of a strike involves only the partial performance of the contract, an employer may instruct an employee not to attend work (commonly referred to as “lock out”). An employer contemplating this should consider carefully the practical and legal implications of such an approach.
Scrutinising the legitimacy of the ballot and considering challenges
A far less common approach to possible industrial action is to challenge the action in the Courts where the union has failed to follow the proper process for balloting or notification. This is rarely a route that public service employers will want to take. However, it is always appropriate to fully scrutinise the legitimacy of the action and compliance with procedural requirements.
Scrutinising the ballot process
Carefully consider whether notices to the employer comply with the strict legal requirements. The employer should ask:
- Does the notice of intention to ballot contain all of the required information? This will include
- The ballot opening date
- numbers of employees to be balloted; and
- categories of employees to be balloted
- Has the union provided a sample ballot paper three days before the opening of the ballot?
- Does the ballot paper contain all of the required information? This will include:
- Name of the independent scrutineer
- Address to which the ballot paper must be returned
- A compliant question as to whether the employee is prepared to take part in the industrial action, ensuring that the proposed action corresponds with the question asked on the ballot paper
- Specification of who is authorised to call on members to take part in industrial action
- A warning to employees that participation in the strike may be a breach of their employment contract
- Have the unions adhered to the strict timetables for the balloting steps?
In most circumstances a ballot will only cover one workplace and one employer, unless the union has organised what is called an ‘aggregate ballot’. Employers should therefore ensure that these rules have been complied with where the Employer covers more than one site.
Voting thresholds and “Important Public Services”
In order for the ballot to be successful, the returned votes must reach at least 50% of the union members entitled to vote and at least 50% of those returned votes must be in favour of action.
Many public sector organisations will deliver one or more ‘important public services’ (a specified list of such services is at section C of the government’s Important Public Services Guidance). Where more than half the workers eligible to vote in the ballot are delivering such a service, the vote in favour must reach at least 40% of all those entitled to vote. While this depends on whether the union “reasonably believes” this to be the case, we recommend that public service employers carry out their own analysis and consider making representations about this requirement to unions in advance of any ballot.
Employer’s remedies
The balloting and notification procedures that must be adhered to are strictly enforced. Where they are adhered to then a union organising action will be generally immune from liability. If these rules have not been complied with, some employers may choose to apply to the courts for an interim injunction to prevent the strike. Other employers may simply choose to highlight the inadequacy to the union and use this to negotiate constructively on mitigating the impact of the industrial action.
Where legal action is taken, the injunction will usually be made against the Trade Union as the person inducing a breach of contract by the employees concerned, unless the action is unofficial and repudiated, in which case it may be an individual or union official who will be committing the unlawful act. Before embarking on potential injunctive proceedings, there are a number of steps required and factors to consider, including preparing a detailed letter before action, the time limits for taking action, gathering evidence of impact, unlawfulness and why damages are inadequate compensation. Careful consideration should be given not just to the legal merits, but to whether an injunction application is the best course of action in the long run or whether it will just fracture industrial relations further. Injunctions should not be sought where they will only serve to delay the inevitable, particularly given the costs and energy in attempting to obtain one.
If you would like to discuss this topic in more detail, please contact our Employment team.
