Out-Law Guide | 01 Mar 2019 | 12:51 pm | 5 min. read
Employers faced with industrial action need to understand the steps that a trade union must take before they can lawfully make a call for industrial action and the timing of those steps. In particular those employers who wish to challenge the legality of industrial action will need to be able to identify which, if any, of those legal requirements have not been complied with while those who wish to make contingency plans need to know the timescales involved.
Industrial action can take the form of either a strike or 'industrial action short of a strike' - for example, an overtime ban or work to rule.
This guide will consider what is required before industrial action can be taken and when.
When will industrial action be 'protected' and 'official'?
For a trade union to avoid liability for inducing employees to breach their contracts of employment by taking part in any industrial action, and for employees to have some protection against dismissal, there are minimum legal requirements that need to be met (see below). Provided these requirements are satisfied, the industrial action will be 'protected'.
Similarly it is important that employers understand when a union is supporting industrial action and the implications of it not doing so. If industrial action has been endorsed or authorised by the trade union, it will be 'official' industrial action.
What can employers do when faced with industrial action?
Employers must be able to ascertain whether or not industrial action has been lawfully organised so that they can decide on the appropriate course of action and, in particular, if there are grounds on which they can challenge the industrial action. If industrial action has been lawfully organised – and is therefore 'protected' – employers are more limited in the preventative steps they can take. However where the industrial action is 'unofficial' – that is, not supported by the union – the risk of dismissal for employees is considerably increased.
If industrial action is protected the trade union will be immune from any action by the employer to sue them for inducing employees to breach their contracts of employment. If industrial action is not protected, even if it is official, an employer will be able to seek an interim injunction in the High Court to prevent the industrial action from taking place or damages from the trade union if the industrial action has already taken place.
If an employee chooses to strike, an employer can withhold part of the employee's pay. The amount of pay that can be withheld can sometimes be complicated and dependent on, for example, whether the employee is salaried, paid hourly or a piece worker. In addition, the employer may take disciplinary action against the employee. Although the employee may be in breach of contract in taking industrial action, and could be potentially dismissed for gross misconduct, an employer has to be careful to ensure that it does not put itself at risk of unfair dismissal claims in dismissing an employee.
As a general rule:
Employers should be aware of the fact that action they believe to be official could be repudiated by the union. The union could confirm that it does not authorise or endorse it, meaning it becomes unofficial action.
When will industrial action be lawfully organised?
To be lawfully organised, and therefore protected, the industrial action must satisfy the following requirements:
If an employer believes that one or more of the above steps has not been complied with then it should keep any evidence of this non-compliance as it could be used in a potential challenge to the industrial action.
The most common mistakes trade unions make when organising industrial action are:
Employers should be aware of these issues if they wish to challenge industrial action. However, accidental and minor breaches will be disregarded.
The Trade Union Act 2016
The Trade Union Act 2016 received Royal Assent on 4 May 2016, and reformed the rules on trade union ballots. The implementation date for the majority of the provisions was 1 March 2017. The main impacts are:
• it’s harder for workers to go on strike. Unions need to gain a 50% turnout figure in any secret ballot before their members can take lawful strike action
• a new requirement that 40% of all those entitled to vote in the ballot must vote in favour of industrial action within certain public services (fire, health, transport, education, border security), while meeting the 50% turnout threshold
• a description is required of the trade dispute on the ballot paper
• measures introduced to restrict picketing
• a requirement that new members must opt into the political fund element of subscriptions
• changes to the role of the certification officer
• restricting the mandate for industrial action post ballot by introducing time limits on the mandate.
• In a concession to the unions, there is a review of the possible use of 'e-voting’ in strike ballots, via online and mobile phones, which may include pilot schemes, but without any commitment to introducing this to replace postal ballots
• Employers get more time to prepare for strikes - two weeks’ notice instead of the current seven days. This will assist contingency planning
• Industrial action ballots will expire after 6 months, so in long running disputes, unions will have to re-ballot or abandon their action.