Executive summary - industrial action guide

Managing the threat of industrial action

There can not be a 'one-size-fits-all' response to industrial action but employers should consider their response within a strategic framework that embraces the following key issues:

• Assessing the scale of the problem
• Dispute resolution
• Contingency planning
• Communications.

In particular, employers should identify who is likely to take part in the dispute and the effect it will have on service delivery and the performance of any statutory duties. Based on this assessment, employers will be able to calculate the cost of the dispute and establish a fallback position upon which a settlement could be reached. It is normally important to try and reach an amicable settlement in the early stages of a dispute, before the wider industrial relations climate is damaged.

If a resolution is not possible, employers should draw up contingency plans that, among other objectives, will maintain the provision of essential services wherever possible. Employers can achieve this by reallocating the work normally carried out by staff taking part in the dispute to:

• staff not involved in the dispute
• other groups of staff
• temporary staff.

An effective communication strategy is an essential component in managing an industrial dispute. It should open clear channels of communication to key managerial personnel, members, trade unions and employees and provide an effective forum for the dissemination of information throughout the dispute.

The law and trade disputes

Trade unions are afforded limited immunity from liability for their actions in organising industrial action if they comply with a series of legal requirements, including:

• The action must be official.
• The action must be taken in contemplation or furtherance of a trade dispute.
• It must be between workers and their current (or former) employer.
• Must not involve secondary action.
• Must be wholly or mainly related to a list of specified matters, such as the terms and conditions of employment or dismissals (including redundancies).

If the trade union does not attract immunity, employers can apply to the courts to prevent the action starting or continuing and to seek damages for loss. In practice, employers are advised to consider the potential damage to the industrial relations climate before seeking redress in law.

Action against individual employees

An individual who takes part in industrial action is likely to be in breach of their employment contract, and employers will therefore be able to take some action in response to that breach.

Although there is no legal definition of industrial action, caselaw has established that

• industrial action must be concerted action against the employer's interests. It does not, therefore, usually cover action taken by an individual
• it must be taken in order to put pressure on the employer in an attempt to achieve some objective
• it will not necessarily involve a breach of contract. For instance, a ban on voluntary overtime has been held to constitute industrial action.

As a basic guide, employees will probably be taking part in industrial action if they:

• collectively withdraw their labour
• refuse to undertake some of their duties
• refuse to carry out reasonable instructions
• take part in a sit-in, go-slow or work to rule
• take part in picketing.

Once the employer has established that the individual is in breach of their contract, they have a range of options, including:

• pay deductions
• suing for damages
• disciplinary action
• suspension
• dismissal
• lock out.

However, in normal circumstances, the most appropriate response is to make an appropriate deduction from pay. In general, caselaw has established the following principles:

• an employee taking strike action has no entitlement to pay during the periods in which the action occurs
• an employee taking industrial action short of a strike in breach of their contract will have no entitlement to any pay if the authority decides to refuse to accept the partial performance of the contract
• where the employer allows an employee to continue working, they will have an entitlement to reduced pay
• where pay deductions are made, these should at all times be reasonable (i.e. a reasonable reflection of the work lost/damages caused).

Pay deductions made as a response to employees taking part in strike action or industrial action short of a strike are excluded from the unlawful deduction of wages provisions in the Employment Rights Act.

Effect of industrial action on statutory and contractual employment rights

Taking part in industrial action can have an effect on an individual's statutory and contractual employment rights.

Although taking part in a strike does not necessarily break an individual's continuity of employment, any time spent on strike will not count toward the qualifying period for certain statutory rights, such as qualifying for a redundancy payment or presenting a claim of unfair dismissal. In some circumstances, taking part in a strike will actually prevent an otherwise eligible employee from enjoying certain statutory rights.

In particular, employees are only protected from unfair dismissal if they take part in 'protected' industrial action, which requires strict adherence to certain legal requirements. However, if the action is 'protected' an employee shall be regarded as unfairly dismissed if the dismissal takes place within 12 weeks of the employee starting the industrial action. In addition, even after the expiry of the 12-week period, a dismissal will be unfair if the employer has not taken reasonable steps to resolve the dispute, which will be assessed by taking into account:

• whether the employer or union had complied with procedures established by any applicable collective or other agreement
• whether the employer or union offered or agreed to commence or resume negotiations after the start of the protected industrial action
• whether the employer or union unreasonably refused after the start of the protected industrial action, a request that conciliation services be used
• whether the employer or union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used.

Where there was agreement to use conciliation or mediation services a number of issues relevant to the meetings held are taken into account (s.238B) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A:

1. Whether the employer or the union was represented by an appropriate person
2. Whether the employer or union co-operated when making meeting arrangements
3. Whether the employer or union fulfilled any commitment to take any particular action
4. Whether the employer or union representative answered any reasonable questions.

Industrial action ballots and Notices to Employers

A key part of Government policy is that industrial action must have the clear support of those workers who are likely to be involved. To achieve this, the law requires that there is a ballot of employees in accordance with strict legal requirements, before industrial action is called for or endorsed. Only where such a ballot produces a majority in favour of industrial action will the action be lawful.In the case of ballots taking place on or after 1 March 2017 at least 50 per cent of those eligible to vote must have voted and, in the case of important public services, at least 40 per cent of those eligible to vote must support the action.

Legislation in this area is supplemented by the Code of Practice on 'Industrial action ballots and Notice to Employers which although without legal force, can be taken into account in any court proceedings.

The main requirements demanded by the law are that:

• all and only those workers who are going to be called upon to take industrial action must be included in the ballot
• the trade union must provide the employer(s) with at least seven days' notice that they intend to hold a ballot for industrial action. The notice must provide details of the categories of employee, the workplaces and the numbers involved.
• in general, there is a separate ballot in each workplace
• the ballot paper poses a question that can be answered 'Yes' or 'No', in relation to both strike action and action short of a strike
• The ballot paper must include:
• • a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates;
  • where the paper concerns action short of a strike, the type or types of such industrial action proposed; and
  • the period or periods within which the industrial action or, where relevant each type of industrial action, is expected to take place.
• the ballot paper must also incorporate the following statements:

"If you take part in a strike or other industrial action, you may be in breach of your contract of employment.

"However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than 12 weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later".

The trade union is also under a statutory duty to inform the employer of the result of the ballot as soon as is reasonably practicable after it closes and give at least 14 days notice before beginning any industrial action. The notice must:

• describe the employees who will take part in the action
• state whether the action will be continuous or discontinuous
• where it is to be continuous, the date on which it will start must be specified
• where it is to be discontinuous, the intended dates on which it will occur must be given.

For ballots that opened on or after 1 March 2017 there is a limit of six months to the validity of the ballot. This can be extended to nine months with the agreement of the employer.

Once the dispute is resolved, employers should negotiate a 'return to work' agreement that will normally seek to restore good industrial relations as soon as possible and avoid recriminations against individuals.

Picketing

For those taking part to retain immunity from legal proceedings, the picketing must be in contemplation or furtherance of a trade dispute and consist only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.