The public sector strikes on 30 November prompted many employers to question how they might deal with a strike, or how they should deal with employees who are unable to attend work due to disruption caused by a strike.
If your organisation is likely to be affected directly by a strike, the first thing to do is to check the validity of the industrial action. There are key minimum legal requirements that must be met by the trade union and mistakes are often made, such as:
- failing to serve the notice of ballot, ballot paper, or notice of industrial action within the requisite timescales, and in the correct format;
- extending the industrial action ballot beyond those union members entitled to vote;
- not affording all those entitled to vote the opportunity to do so;
- and inducing members to take part in the industrial action who were not given opportunity to vote.
If correct procedure has not been followed, the employer may be able to challenge the validity of the industrial action – there was a high-profile incidence last year of British Airways obtaining an injunction to prevent a strike due to a technical flaw in the ballot process.
If industrial action is going ahead, many employers will consider the use of replacement workers. For an unofficial/wildcat strike, this is acceptable. It is slightly more complicated during official action. An employer cannot use a worker sent by an employment agency, where the worker's actual contract is with the agency – doing so can lead to criminal penalties for both the agency and the employer.
It is, however, acceptable for an employer to recruit workers directly on a short-term basis to cover for striking employees. These workers can be introduced by an agency, as long as their contract is with the employer and not the agency. Employees can also be transferred from another part of the business, providing their terms and conditions allow for a change in duties.
Crossing the line
Picket lines can make attendance at work difficult for those who are not striking. Picketing is only lawful, however, if it is undertaken by the following people: current employees, ex-employees who were dismissed in connection with the dispute and whose last place of work was the employer, and trade union officials representing any of the above.
The purpose of picketing is to obtain or communicate information, or to persuade any person who is working to abstain from doing so. It must be carried out peacefully, with no intimidation or threatening behaviour. If a picket does not comply with all of the above conditions, an employer can take action against the union for inducing a breach of contract, and can obtain an injunction against the picket.
Even if a picket is entirely lawful, there will be no protection for individuals who threaten assault, obstruct entrances, trespass, damage property or breach the peace. If any of the above takes place, the employer could apply for an injunction to stop it.
There are also non-union employees to consider. With public sector strikes that lead to school closures, many employees may be unable to attend work as they have to care for their dependants. Employees (but not 'workers' – there is a legal difference but insufficient space here to go into this) may be entitled to a reasonable amount of unpaid time off work in this situation under the emergency dependant leave provisions. Subject to the employer's policy, they could agree in advance to take the time off as holiday.
It is worth planning as early as possible, to avoid a flood of last-minute requests. Employees should be asked to make alternative childcare arrangements in advance. Employers should also consider flexible working options for the periods covered by the industrial action – employees could make up the hours at another time, take unpaid leave, or swap shifts. In addition, agency workers can be used to cover for employees who are unable to attend work, but are not on strike.
It should be made clear to staff who are not part of the industrial action that they may face disciplinary action for any unauthorised absence – including, for example, if they have to cross a picket line to access the premises.
Sam Hall is a trainee solicitor at Pinsent Masons: www.pinsentmasons.com
