The People Bulletin

Industrial action is on the rise. British Airways, Network Rail, First Capital Connect, EDF, British Gas and the AA are all high profile organisations who have faced strike action[1]. Are we, as recent press headlines suggest, returning to the discontentment experienced back in the late 1970s, a period where Britain was nearly paralysed due to industrial action. 1979 saw 29m work days lost to strike action. By comparison, 2009 saw 455,000 days. So the short answer is no – and whilst strike days in 2009 were certainly higher than 2008, there have been worse years over the past decade.

Legislation introduced in the 1980s makes it harder for unions to call industrial action. Failure to comply exposes the union to legal claims and puts strikers at risk of dismissal. It is worth, therefore, employers taking a fresh look at some of the things they can do to challenge and cope with threatened industrial action.

Balloting the correct people

If unions breach the pre industrial action requirements, it is usually when they invite the wrong people to vote in the ballot, which was the case with the Network Rail and December BA industrial action ballots.

Unions must only invite those of its members to vote in the ballot who, at that time, it is reasonable for them to believe it will induce to take part in the action. Accidental and small (i.e. on a scale unlikely to affect the outcome of the ballot) failures can be ignored.

In the Network Rail case, the union allegedly balloted members at signal boxes that did not exist, failed to ballot signal boxes that did exist and sought votes from more employees than actually worked at some signal boxes.  

With the December BA strike, the union allegedly knowingly invited employees leaving the business to vote in the strike when it knew they would not be employed at the time of the strike and so would not participate in it.  The union argued that it did it's best to stop those employees voting that it was aware were leaving.

Employers who suspect balloting irregularities should put in place sufficient evidence gathering arrangements and act quickly.

Providing the correct information

Unions need to give seven days prior notice of their intention to ballot for industrial action. This notice must include, amongst other things, details of the categories of employees who will be entitled to vote.  Similar rules apply with notices of intention to take industrial action.  

In the recent case of EDF Energy Powerlink Limited v RMT [2009], EDF obtained an injunction to stop industrial action as they were unable to identify, from the notice, the category of union members that the RMT proposed to ballot. The categories identified in the notice were 'engineers' and 'technicians' whereas employees at the site were described by EDF as fitters, joiners, test room inspectors, day testers, shift testers or OLBI fitters.  An injunction was granted and the High Court added that ‘categories of employees’ is a very broad concept and means a ‘reference to the general type of workers’. It does not require job descriptions but might require the union to set out the relevant ‘trades’. 

Employers having difficulties identifying who will be asked to vote or, in respect of the notice of industrial action, which the union will be inducing to take part in the action should consider challenging the union on this point.   

Good communication

Employers should tell employees their side of the story, fast. Whilst most employers are slowly drafting their communications by committee, unions have already drafted and circulated theirs. This makes the employer look more reactive, and defensive, meaning the union's version may be given more credibility. It should go without saying that communications should be informative and not threatening.

Ballot result

As soon as reasonably practicable after the holding of the ballot, the union should take such steps as are reasonably necessary to ensure that the employer is informed of the result of the ballot, ensuring that the appropriate information is contained in such notification e.g. number of yes and no votes, etc. 

In the case of Metrobus Limited v Unite the Union [2009], Unite informed Metrobus of the outcome of the ballot nearly 46 hours after it closed. The delay was due to the union only getting the result the day after the ballot closed and then the union waiting until the following day to inform Metrobus. This was held to be a breach of the union's obligations. Unite's delay in forwarding the result was problematic but the Court also found that there was no reason why the union could not have contacted the electoral reform society on the afternoon the ballot closed, or at the latest the next morning, to find out the result.

Employers facing industrial action would be wise to watch out for any similar delays.

Using agency workers

Using temps, i.e. employees of an employment business who are supplied to the company facing the strike action, to cover the work of striking employees or employees who are covering the work of striking employees, is problematic. Whilst the restrictions apply to the employment business, a company using such workers will be at risk of aiding and abetting the offence. 

The restrictions do not apply where industrial action is unofficial (i.e. it is not authorised or endorsed by the union) and would not stop the company replacing an existing temp, provided their work is the same as before the industrial action started.

Whilst the regulations should not stop employers engaging agency workers direct, the Communication Workers Union (CWU), in their dispute with Royal Mail, applied for an injunction to prevent Royal Mail from using such workers. The dispute was resolved before the case was heard. Employers need to take care when engaging other workers during industrial action.

 Pay and benefits

An employee has no right to be paid unless they are ready and willing to perform all of their contractual duties. Accordingly, a striking employee is breach of their contract and has no entitlement to be paid for that period.   

Benefits, though, are more complicated. BA's withdraw of 'travel perks' from striking employees has, therefore, attracted a lot of attention and has further divided the parties. BA claims that the travel perks are discretionary whilst the union claims that the travel perks have become a contractual right because of custom and practice. Where benefits are contractual, only those benefits specifically referable to the striking day should be withdrawn. However, very few benefits can be allocated to a specific day and so withdrawal of benefits can be risky. Where a benefit is discretionary, employers still need to take care when withdrawing them, particularly if they want to avoid a claim that withholding such benefit is a breach of the implied term of mutual trust and confidence giving the employee the right to resign and claim constructive dismissal. 

There is even more difficulty where the industrial action is in the form of action short of strike and employers need to tread carefully.

Most of the lessons coming out of the recent strikes have shown employers taking a harder stance and standing up to unions. Employers should remember, though, that challenging the union doesn't have to mean an injunction. When challenged some unions do back down as they know that a failure to comply with the obligations could put both them and their members at risk.

Something employers should keep at the forefront of their minds, though, is that when the dust has settled, the employer and employees still need to work together and an unhappy work force can be an ineffective workforce. Certainly, with BA's withdrawal of travel perks being described as ‘vindictive’ and "the clearest possible example of BA's bullying and contemptuous approach to its employees", employers should watch what happens next. There may be more lessons to be learned.

[1] For a public sector snapshopt see also ‘Civil servants covering strike action told to be robots’ The People Bulletin 17 March