Trade union strikes: cutting through the myths. Part two - what next?

18 September 2014

In part two of this series, we take a closer look at what to do when action has been announced and the options open to employers.

So, what mandate does the union now have?

This will depend on the question or questions which the union asked and whether they got a majority vote in each case. If it is clear that the majority of those who voted did so in favour of participating in a strike then that is what the union can do; the same applies with support for action short of a strike.

How long do they have?

The ballot gives a window of opportunity to call for and initiate the proposed action. The period is four weeks - but it can be extended by agreement with the employer (an odd idea but it does happen as it allows breathing space).

The four-week period runs from the last day of voting; if the window closes without a call for action then, unless the employer agrees to an extension of up to four weeks or a court has used its limited jurisdiction to grant an extension, the union has to start again.

So, if the union leaves it too late they have no protection. As an employer you are not required to grant any sort of extension to the period for action to be called.

What does the union have to do to trigger the action?

First, wait until the ballot has happened and the all concerned have been notified of the result. The "call for action" must be by the person named on the ballot paper as having the authority to do so. The union therefore needs to make sure the right name was given on the ballot paper and that the call, when it is made, comes from the right person. Some authority can be delegated but, from the employer's perspective, it is an opportunity to check whether the call is compliant or not.

Notice in writing has to go to the employer - as you would expect at this stage. It must identify details of the affected employees by category and workplace and the total number involved in the action (in total, by category and location). This tells the employer who will be involved.

The written notice must also tell the employer whether the action is going to be continuous or discontinuous; with the former it must say when it will start; if it is the latter then it must identify the dates/times of the action concerned.

The notice must be received not less than seven days before the action is to start.

Who can be called out by the union?

As you would expect, given the need to identify the likely participants before you balloted them, it ought to be only those who were balloted. There are some complications - the union might not have balloted the people it now wants to call out (which will be a problem) or it might call out non-members (for instance, where is represents all the workforce but they are not all members) which will not be an issue even though they were not involved in the process. Those who were employed but were not union members at the time of the ballot or those who became employees after the ballot took place can be called out as well.

What can an employer do to striking staff?

If the action is unofficial - without the endorsement of the union - then if the employee was participating in the action when dismissed there is no right to complain of unfair dismissal. There are some key issues here on timing and notice.

If the employee was engaged in official action, then it is more complicated. If the employee is sacked for having taken part in protected industrial action then the dismissal may be automatically unfair irrespective of service. But, and this is important, if the reason for the dismissal was something other than the participation in the action, then the normal rules on unfair dismissal will apply. Employers need to be careful in what they do and why they do it.

If the action was union approved but not protected by a ballot then dismissal during the action can result in an unfair dismissal claim if the employer is selective in who it dismisses.

Our people are on strike and there are pickets - what are the rules?

Your staff can picket at or near their own place of work for the purpose of "obtaining or communicating information, or peacefully persuading any person to work or abstain from working" in furtherance of a trade dispute. Only your employees and their union officials can attend. The legislation does not limit how many pickets the union can put in place although the Code of Practice on Picketing suggests no more than six at any one time.

There are a number of important issues when looking at picketing - how close is "at or near", because they are not allowed to attend in or on their place of work and have no right to enter private property? How do you deal with mobile workers? How do you manage the balance between the right to attend (so, to be there) as against the assumed, but non-existent, right to engage with people to persuade them not to cross the line.

Picketing is legitimate, but can be seen as intimidating and potentially violent. The courts do not accept that large numbers equate with violence, but they will look to protect the interest of workers wanting to come on to the site and those of the employer either by warning those involved as to their behaviour or, in some case, identifying threats made and those involved who may be subject to criminal or civil claims.

As with any use of the courts, they can limit the activity or they can provoke a backlash. Before rushing in consider alternative and agreed ways of lowering the temperature.

We are not involved but there are a bus load of drivers from our logistics company on our gate - what do I do?

If you, as an employer, are not a party to a trade dispute (so, have you been balloted, notified of action etc or has a dispute been raised at all by your staff?) then the law outlaws action taken against you by someone else's employees.

This is intended to prevent the "flying pickets" sent by the unions to sites operated by customers and interested parties so that the impact of the underlying dispute is amplified and the employer forced to negotiate. It also happens where employees of other businesses were prompted to go along and support their union colleagues - the so called mass picket - which prompted the legislation outlawing such action.

The remedy in such cases is an application to the court for an order that the action is stopped. This will be against the unions involved rather than the individuals concerned, although there are circumstances where unnamed individuals can be sued.

Can I use agency labour or draft people in?

Your own staff, or enough of them to disable the business, are on strike. Those not on strike will not cross the picket line. You have orders you need to get out, what can you do?

  • You can move people from another part of your business, or another site, to cover for the strikers. You may face issues with getting them to cross a picket line or, in some cases, their contractual mobility clauses.
  • You can recruit people to cover for the strikers - but this is impractical unless you have a lot of notice of the strike and/or your staff do not need much training or are easily replaced. If they are employed direct then, subject to getting them in and out, you are fine. In some circumstances might you have people on zero hours contracts just for this purpose?
  • You can look at using people from another group company - but again you will have issues about them crossing the picket line and, practically, how can their normal employer do without them?

If you have your staff employed in a central group service company, but supplied to your subsidiary, then technically it may be an "employment business" and would be prohibited from providing the cover you need. If they do, they might get prosecuted and fined. The fine is limited so, being blunt, do you take the risk?

Using an outside agency to provide short term cover does not cause you a problem but it leaves the agency, or "employment business" open to a fine if they knew they were providing strike cover. This applies whether they provide them to you direct or whether their people are used to backfill another part of your business. It also tends to attract adverse attention from the unions who are known to notify agencies of the action so they cannot run the "But we didn't know!" defence.

So, do we have to fight on the union's terms?

No, you do not but you have to work hard to avoid it.

In any year there will be many situations where the union threatens action of some kind. Employers have the chance to negotiate with the union or go for the hearts and minds of the workers to undermine the union call. By focussing on that you can take the ground away from the union - are they really interested in the local issues or is this part of a wider campaign? Are they communicating their version of events or can you go for a direct information cascade to your employees? You do not have to sit idly and watch them at work.

What you can also do is use to your advantage the process the union has to pursue to protect itself. The timetable takes, on average, a minimum of 28 days to complete. There are opportunities along the way to divert attention, to revise the proposal, to head off the process. You have opportunities to challenge the union on compliance - it is not always easy as they have a lot of experience but that can breed complacency. Take those opportunities to test them on what they have done.

Remember this - if there is an issue over compliance you have to decide whether to use it in the short or long term. As injunctions are the way to get the action delayed, whether permanently or only while they have another go and get it right, you cannot be seen to delay. But there are few cases where going to court and forcing the issue actually improves the industrial relations environment - so perhaps the threat of the challenge will have almost the same effect as the challenge itself.

If you are faced with the threat of a ballot, an immediate strike, a ballot result or just want to talk it over, please call. We look at these issues with clients on a regular basis - sometimes it is just about considering the alternatives, other times it is about going to court.


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