Striking times: preparing for industrial action

The current landscape

The UK is experiencing the biggest rail strike in three decades called by the RMT (The National Union of Rail, Maritime and Transport Workers), bringing major upheaval to the wider economy. However, it is merely the tip of the iceberg in what seems to be a growing trend of discontented UK workers demonstrating their willingness to withdraw their labour to achieve better pay and working conditions.

In support of the RMT’s strikes starting today, and planned to continue later this week, TSSA (the Transport Salaried Staffs’ Association) has also balloted its members at Network Rail who hold managerial and safety critical roles, having already held ballots at a number of train operating companies.

The cost of living crisis and rising inflation have been, and continue to be, significant drivers for the increased level of discontent, but it is not just in the rail sector. According to the Guardian, disputes are on the rise. Compared with figures in 2019-2020, between October 2021 and March 2022 the GMB (General Municipal Boilermakers) has been involved in seven times more disputes, and Unite has seen an almost fourfold increase over the same period. We are seeing trade unions threaten employers with, and mobilise workforces into, potential industrial action in many other industries including aviation, education, health and even the legal sector. Notably, we are also seeing industrial action in industries/sectors that historically have managed to resolve their industrial relations differences – a trend that is likely to continue.

In this Law-Now, we set out some of the key aspects of preparing for industrial action which has been endorsed by a trade union.

Prepare your communication plan and keep it honest

It is a common misunderstanding that employers faced with industrial action are not permitted to communicate directly with their employees to try to dissuade them from supporting industrial action. Employers are entitled to explain the impact of the industrial action on the business, the implications for them personally (for example, in terms of pay), the effect it may have on the wider workforce and the importance of voting to avoid a successful ballot due to voter apathy. Employers should however be honest in their communications and not threaten or intimidate their employees.

Keeping communications open with the trade union is also important to demonstrate the employer’s willingness to behave reasonably and seek a resolution of the dispute.

Be prepared to challenge the union

In organising a strike (and potentially other forms of industrial action) a trade union may commit the tort of inducing a breach of contract. However, the trade union will be protected from legal action if it has satisfied the statutory conditions for immunity, in particular that:

• the action is in furtherance of a trade dispute and not for a prohibited reason;
• the union members have been properly balloted and support the action. The union must only ballot those of its members who it reasonably believes (minor errors excepted) will be induced to take part; and
• the union has complied with the strict notification requirements employers are entitled to, including 7 days’ notice of a ballot, notice of the outcome as soon as reasonably practicable and at least 14 days’ notice before the industrial action is due to start.

Failure to follow these (and other) procedural steps may give the employer the right to seek an injunction, although that may only serve to delay the action rather than prevent it completely.

Mitigating the risks associated with industrial action

Whilst an outright strike is likely to cause major disruption to employers, action short of a strike, such as an overtime ban, a go-slow or work to rule can also cause resourcing issues, delay production and prove expensive. Mitigation strategies will depend on the nature of the threatened industrial action and the disruption likely to be caused, although a key planning consideration is likely to include communications with the workforce, suppliers and customers; reorganising the workforce to deal with resourcing and arranging cover where permitted; anticipating issues that may arise in the event of workplace picketing; and making alternative arrangements for the supply of goods in and out where necessary.

It is however important to note that in the case of a strike, it is (currently) a criminal offence for an employment business to supply an employer with agency workers to cover the work of either (i) striking workers; or (ii) those workers who have been redeployed to cover the work of striking workers. Employers may themselves also become liable for instructing the employment business to supply agency workers.

Employers are otherwise free to use existing employees from other areas of their business; continue to use existing agency workers to do the work they were originally supplied to do or to cover the work of absent employees who are not striking; directly recruit temporary workers; or outsource services to a third-party contractor.

Not having the ability to rely on agency workers can significantly increase the potential effect of a strike in some industries, which is why, in the wake of the planned RMT strikes and the widespread disruption on UK businesses, the government intends to remove this statutory prohibition. Whilst this could potentially take the sting out of strike action, it remains to be seen what the actual impact of such a change in the law will be on industries that engage highly skilled staff. According to recent press reports, the legislation to repeal the prohibition will be laid before Parliament this week with the intention that the new law will come into effect by mid-July. The Trades Union Congress has warned that such a move would violate trade union members’ right to strike which is safeguarded by ILO Convention, the European Social Charter 1961 and Article 11 of the European Convention on Human Rights. It has also been argued that such a move would be incompatible with the EU-UK TCA Brexit deal and open to potential legal challenge.

Please get in touch with your CMS contact if you would like to discuss how this issue may affect your business.