Industrial Action: An Employer's Guide
Over the past 12 months, the UK Government has made numerous policy decisions which have been subject to strong criticism. In particular, these have included decisions to award a 3% pay raise for NHS staff and introduce a vaccination requirement for the health and social service workers.
Given the sector that these decisions affect, an increase in union activities is likely and therefore, it is important to have knowledge of the biggest issue an employer can face in this respect; industrial action.
What are the types of industrial action?
The most well-known type of industrial action is where a workforce refuses to work for the employer, commonly known as a strike.
Action short of striking includes 'working to rule' which is where staff follow contractual working rules and hours to the letter or do not work overtime shifts, with the intention of reducing efficiency.
What must happen before industrial action is taken?
A union must have properly organised a vote (a ‘ballot’). Before organising a ballot, the union should consider which members are affected by the disputed issue.
The ballot and preparatory steps
The union must send the employer the following:
- Notice of intention to ballot, at least seven days before the ballot.
- A copy of the ballot paper (voting slip), at least three days before the ballot.
The notice of ballot must include certain information such as:
- that the union intends to hold a ballot;
- the opening date of the ballot; and
- the total number of employees to be balloted.
Employers do not have a right to require the union to supply a list of the employees' names.
The union must provide a voting slip not later than the third day before the opening day of the ballot. The ballot must include certain information such as:
- a summary of the matters which the proposed industrial action relates;
- a period within which the action or each type of action, is expected to take place; and
- a "yes/no" question as to whether the employee is prepared to take part in industrial action short of a strike.
What are the requirements for the ballot to be successful?
To pass, the ballot must have met the following criteria:
- at least 50% of trade union members who responded to the ballot must have voted in favour of the action; and
- at least 50% of all eligible members must have voted.
A further requirement applies in ballots of workers engaged in "important public services" which is that least 40% of those entitled to vote must have voted in favour of the action. This is a crucial point to consider and may assist an employer who wishes to contest the outcome of a ballot.
If the ballot succeeds, how much notice of industrial action is an employer entitled to receive?
A trade union must provide an employer with notice of industrial action before any such action is taken. The minimum period of notice is 14 days.
Any such ballot decision for industrial action expires six months after date of ballot.
Can an unrecognised union call for industrial action?
The relevant legal provisions make no mention of recognition and, therefore, an unrecognised trade union can arrange a lawful ballot for industrial action.
What, if anything, can an employer do after receiving a notice of ballot?
Seek an interim injunction
The union must comply with a number of procedural requirements, otherwise the employer will have grounds to seek an injunction to prevent the action going ahead.
To succeed with an injunction, the employer must usually demonstrate that one of the following has occurred:
- Breach of balloting requirements by the union, for example sending ballot papers to members who are not entitled to a vote.
- Failure to give the employer adequate information in the notice of a ballot or the notice of industrial action.
- Unlawful picketing that has been endorsed by the union.
In most cases, a successful interim injunction will bring an end to the industrial action.
Persuading employees to oppose the strike
Consider any communications which might be helpful to encourage employees to oppose the strike. These should be measured, conciliatory and stress the positives such as:
- The bigger picture – discuss the reputational and financial damage to the employer if the strike goes ahead.
- Stress that if employees are opposed to the strike, it is important they use their vote.
- Remind employees (but not in a combative fashion) that they will not be paid while on strike.
However, employers must tread carefully to ensure that the employees cannot be deemed to be suffering from a "detriment" as a result of engaging in union activities, as this is unlawful.
Prepare for the possibility that a strike may go ahead. For example:
- Form a plan to ensure that the business can operate as normally as possible during the strike. However, there are restrictions on agencies supplying temporary labour to cover the work of striking employees, so employer must be aware of what they can and cannot do.
- Ensure that the payroll team is instructed to make pay deductions where appropriate from employees on strike. This can be a complex calculation if the employees' work on a shift pattern.