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Strike action: What does the law say and how should HR respond?

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Samantha Dickinson, equality and diversity partner at law firm Mayo Wynne Baxter, discusses what the laws are on industrial action and how employers should respond when threatened with strikes.

 

24th Jun 2022
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Be it an all-out stoppage of work or a 'work to rule', where employees perform their duties strictly to the letter of their contract and refuse to take on additional duties so as to disrupt the employer's business, emotions run high when strike action is threatened. 

HR professionals need to be able to advise management on what can and cannot legally be done when a strike is threatened, but they also need to think about the optics of any action they might take.

Mediation and preventing a strike

It almost goes without saying that the most important consideration for HR in these circumstances is to focus on whether the dispute can be resolved before a strike. 

Parties often become so entrenched in their views that the skills and, crucially, the independence of an external arbitrator enable the best route to achieving an amicable compromise. Organisations such as the Advisory, Conciliation and Arbitration Service (ACAS) or the Centre for Effective Dispute Resolution (CEDR) specialise in mediation and alternative dispute resolution.

Are striking employees entitled to pay?

An employee who withdraws their labour will be breaching their employment contract and an employer can, legitimately, withhold pay. Furthermore, unless the strike action is ‘protected’ the employer may dismiss some or all of the striking employees with or without notice, depending on the circumstances.

Protected action is where a strike is called by a union, having first complied with the ballot and notification rules. The employee’s breach of contract, while unlawful, is not grounds for dismissal, providing these strict conditions are met. 

Therefore, one of the first things to do is to check if these conditions have been complied with.

What consequences arise from dismissal?

Dismissing an employee for taking part in protected industrial action will be automatically unfair and the usual prerequisite of needing two years’ continuous service falls away.

A dismissal for which the reason, or principal reason, is that the employee took part in protected industrial action, will be automatically unfair if the date of the dismissal is within 12 weeks of the day the employee first participated in the strike. In some circumstances, even a dismissal after this time will be automatically unfair.  

If the employee was participating in unofficial action at the time of dismissal, an employer need not be concerned about unfair dismissal claims (subject to the ‘ordinary’ rules around dismissal).  

It is not always clear if strike action is official and what starts out as such can become unofficial if the trade union withdraws their endorsement, so careful consideration of the facts is required.

Both sides need to live with each other after the dispute has been resolved. Simmering resentment means tensions remain.

Other actions employers can take

Earlier this year the Court of Appeal ruled that employers can take action that stops short of dismissal, even if it causes the employee to suffer a detriment.

This means an employer can threaten workers with a loss of overtime hours, benefits including bonuses, or opportunities for promotion. Of course, this is likely to inflame the situation, so it is not something to be undertaken lightly.

Blacklisting, such as where an employer makes a list of employees who have taken part in a strike and then uses that list to decide who will receive a pay rise, is unlawful. This somewhat contradicts the Court of Appeal’s decision but, in any event, proving the existence of such a list can be problematic. 

Contingency plans

As the law stands today, it is a criminal offence for an employment business to supply an employer with agency workers to perform the duties that would normally be done by a worker who is on strike. 

However, the government has formally announced a change in the law that they say will be made in the coming week, so that agency workers can fill in the gaps when industrial action takes place.

What effect this has in practice remains to be seen – will there be suitably skilled workers available at short notice? Will they want to cross the picket line? 

Whenever the dialogue breaks down, adding fuel to the fire, whether by way of dismissals or introducing agency workers, only deepens the divisions.

What next?

If there is to be a swift change in the law, the legal framework may end up being more confusing. Rushed legislation is very rarely a good idea. Without proper scrutiny the legislation can leave gaps and have unintended consequences.

Strikes come about because of fractures in a relationship. Adding an extra layer of dispute via legislation that is poorly thought through is not a recipe for improved relations.

Both sides need to live with each other after the dispute has been resolved. Simmering resentment means tensions remain. There cannot be a winner-takes-all mentality where one side feels they had to give up all they were hoping to achieve. That simply leads to the parties licking their wounds and readying for a new fight later.

Dialogue is key 

Building trust takes time and needs secure foundations. That means an agreement where both sides can feel there is a way to move on. Mediation before, during and after a dispute is a way of achieving this. 

Whenever the dialogue breaks down, adding fuel to the fire, whether by way of dismissals or introducing agency workers, only deepens the divisions. While negotiations behind closed doors do not grab the headlines, that is where the progress is to be made – by both sides.

Interested in HR legal issues? Read What does hybrid working mean for employment law?

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