Coping with Industrial Action - What Employers Can and Cannot Do

We have recently seen mass industrial action by public sector workers and some are predicting a Winter of Discontent comparable to that of 1978/79.

So how can employers cope with industrial action?

Communicate

Some employers faced with industrial action think that they are not permitted to communicate directly with employees. This is a myth. Clearly, they cannot threaten employees or intimidate them, but they can talk about the service impact, costs, and so on. Employers should also explain the consequences of lawful industrial action, namely that employees on strike are not entitled to be paid, and that those who participate in unofficial industrial action which is not endorsed by a trade union run the risk of having no protection against dismissal.
Employers should consider using online communications and, if appropriate, social media. As well as helping an employer to convey information to a broad audience, it may allow them to gauge employees' views on forthcoming action and plans for any unofficial action or picketing.

They should also keep communications going with unions. If nothing else, this should help prevent a headline that an employer is being unreasonable and refusing to maintain dialogue with the union. In the case of the industrial action on 30 November, the negotiation/communication situation is unusual with talks taking place primarily between unions and the government.

Oppose

Employers should consider challenging the legality of any industrial action.

The most likely ground of challenge would be in relation to any ballot. Unions must comply with stringent balloting and notification requirements. There are three key areas which the union must get right: the notification of an intention to ballot, the process for the ballot itself and the way in which the union communicates the outcome. All aspects of the process should be checked. If there are discrepancies then an employer may have grounds for applying for an interim injunction/interdict which may have the effect of preventing the strike from taking place.

In relation to the industrial action on 30 November and any future industrial action arising out of the pensions dispute, some commentators have suggested that this could be challenged on the basis that it does not arise out of a genuine trade dispute which is a fundamental requirement in order for a strike to be legally protected. Such a challenge would be on the basis that the dispute in this instance is between the unions and the government and not between employees and employers. However this argument has not been tested and it would probably be a brave employer who adopted this approach.

Litigation is however only one option - mediation or conciliation through Acas may be more appropriate in some instances. Employers need to consider the cost/benefit analysis of proceeding with litigation - it is expensive and may only serve to delay the industrial action rather than prevent it entirely. Tactically, a delay can sometimes give crucial negotiating territory - particularly where the aim is to hold mass industrial action on one particular day.

Plan and prepare

This is crucial. Ideally employers should draw up an industrial action strategy. Employers can bring in labour to help minimise disruption, and can ask those staff who are not participating in industrial action to help them provide cover. But they should remember that employment agencies are prohibited under the conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319) from providing agency workers to replace individuals taking part in official industrial action, or to replace individuals who have themselves been transferred by the end-user to perform the duties of the person taking industrial action.

Some lateral thinking may help minimise the impact. For example, alternative routes for suppliers, deliveries and service users may need to be identified if picketing is anticipated. Employers should also communicate with staff in advance to ensure that those staff not participating in industrial action plan ahead to deal with any potential disruption caused by widespread industrial action. So for example, have they considered the impact on child-care, transport etc?

Ensure staff who want to work, can

Employers should ensure non-striking employees are not threatened or intimidated and that any protests/picketing remains peaceful to prevent non-striking employees being dissuaded from attending work. Broadly speaking picketers are entitled to obtain or communicate information, or persuade any person to work or abstain from work, however they must do so peacefully.

This is based on an article originally published in People Management.