Striking a fair deal

Conflict is likely to arise as employers are faced with the discontent that inevitably follows cuts. So if industrial action seems imminent,  forward planning can help to ease tensions

by Tim Woodward

15 July 2010

 

A recent Acas discussion paper has warned that we may be entering into a new era of workplace conflict, as employees gain confidence post-recession. Network Rail, British Airways and BT have already faced union opposition to proposed measures and public sector cuts are likely to lead to dissent. Unison has already threatened to fight cuts and ballot for strikes if pensions are reduced. But what should you do if faced with the threat of a strike?

The background
Unless certain strict conditions set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) are met, a trade union organising a strike is at risk of being found liable for inducing employees to breach their contracts of employment. In summary, the conditions with which a union must comply are:
• the action must be a valid “trade dispute”
• which is not being undertaken for a “prohibited purpose”
• union members must have been properly balloted, and
• the employer must have been properly notified.
So, if talks break down, what practical steps can an employer take if the worst happens and a union goes ahead and starts to organise a strike?

Ballot
Carefully consider whether the notice complies with the strict legal requirements. For example, does the notice contain all of the required information, such as the opening date and numbers and categories of employees to be balloted. Is this information ‘as accurate as is reasonably practicable’?  A sample ballot paper must be provided no later than the third day before the opening day of the ballot. Check that this has been received, and that the wording on it exactly reflects the requirements of TULRCA. For example, does the ballot paper:
• state the name of the independent scrutineer, and the address to which the ballot paper must be returned
• ask if the employee is prepared to take part in the industrial action (on a ‘yes/no’ basis)
• specify who is authorised to call on members to take part in industrial action
• warn employees that participation in the strike may be a breach of the employee’s employment contract?
You may wish to emphasise the wider implications for your organisation, such as reputational and financial damage, which may have a knock-on effect for employees. You may wish to remind employees that they will not be paid while they take part in a strike. You may also wish to ensure that those employees who are opposed to the strike register their opposition by using their vote. Once the ballot is under way, monitor it to ensure that the union is complying with the rules on the conduct of a ballot.

Practical planning
In the event of industrial action going ahead, ensure you are best placed to limit its effects and deal with its consequences.
• Consider how you will cover absent employees. Agency staff may not be used to cover striking employees (or employees re-deployed to cover employees who are on strike). However, you may be able to employ staff on short term contracts, without using an agency, or outsource work to a third party contractor.
• Consider the possibility of wildcat action /unofficial action, decide how you will respond.
• Consider how you will deal with employees who call in sick during a strike. Will you temporarily amend polices, for example, doctors’ notes are required for shorter periods.

Notice of strike
Ensure the union has provided accurate information and complied with all the relevant legal requirements, such as (for example) details of the result, notice requirements and details of which categories of employee will be called out to strike. Check whether there are any discrepancies between the notice of ballot and notice of strike, or repeated errors between the notice of ballot and the notice of strike.
Note that the Court of Appeal recently decided in Milford Haven Port Authority v Unite the Union that the statutory requirement for a union to specify whether the action will be ‘continuous’ or ‘discontinuous’ does not mean that the union has to issue two separate notices if it chooses to take both types of action.

Injunction
Consider, tactically, when to apply for an injunction, bearing in mind that you may not wish to apply while the union has the opportunity to remedy any defects in their procedure. Ensure that you comply with the time limits, and that you have the necessary evidence available for the court, including detailed witness statements.

Post injunction
Remember that, even if you are successful in obtaining an injunction, this may not be the end of matters, as it is still open to the union to issue a fresh notice of ballot immediately after the hearing. That said, there may still be advantages in obtaining an injunction: the threat of action may fizzle out and, if not, then you will have bought some time in which to negotiate and / or make contingency plans.


Case study: BA vs Unite
In December 2009, in British Airways v Unite, BA successfully obtained an injunction preventing a 12-day strike. Unite had failed to take reasonable steps to establish the identities of redundant employees who were leaving BA before the strike and prevent them from voting in the strike ballot. The numbers did not change the result but the failure was still fatal to the legality of the strike.  However, BA were not so fortunate in their most recent attempt to stop a strike when Unite had failed to provide statutory information by direct communication to all members.  The Court of Appeal said the union had satisfied TULRCA requirements.
 
Tim Woodward is a partner at law firm Bevan Brittan