At the recent TUC Congress, union delegates backed joint industrial action if "attacks" on jobs, pensions and public services go ahead “to support and co-ordinate campaigning and joint union industrial action, nationally and locally, in opposition to attacks on jobs, pensions, pay or public services".

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The suggestion is that unions are, therefore "standing ready" to embark on industrial action although there was no detail of what form it could take.  Dave Prentis, general secretary of the Unison public services union, called for united action to defeat the government's "austerity agenda";  Unite, the UK's biggest union, said it wants a "robust campaign" to protect public services, while the RMT has called for “civic disobedience”

Whilst employees may not get swept up by such union calls, it is important for HR to do what they can to manage relationships with staff and trade unions as the spending cuts begin to hit home.

Steps to consider:

  • Keep all parties engaged - listen to the views and ideas of staff and share the real financial position so that they are aware of the challenges.
  • Ensure that all communications channels are kept fully open at the individual and the collective level.  
  • Ensure managers involved in communications or meetings are well briefed/trained and keep a consistent view/position in any responses from the organisation to staff or unions.
  • Use technology to disseminate information but ensure face to face meetings are built into the strategy.

Fears of a new winter of discontent may not materialise, not least because secondary picketing is now illegal, but what is legal and what can employers do about their staff taking industrial action?

On one level, a strike (and almost every other type of industrial action) is always unlawful, since the employees involved will breach either the express or implied terms of their contracts of employment by taking part.   However, although the breach of contract itself remains unlawful, the employer loses its ability to sue the trade union and (to a limited degree) to dismiss the striking employees, provided certain strict conditions are fulfilled in relation to balloting and calling for the industrial action (see previous article on balloting).  The phrase "lawful strike" or "lawful industrial action" is often used to describe industrial action that has been organised in accordance with these conditions, and which therefore affords the union and employees these immunities.

What is “Industrial Action”?

There is no statutory definition of industrial action, but, as a general guide, any concerted action which is taken in order to put pressure on an employer is capable of being industrial action.  Case law has held that the term covers the refusal by a group of employees to do anything (whether or not in breach of contract) as a bargaining weapon.  Like the proverbial elephant, Tribunals are trusted to know it when they see it.

However, there are two basic types of industrial action:

  • a strike, which is an outright stoppage of work.
  • other industrial action short of a strike which can include: an overtime ban; call-out ban; go slow; work to rule; work-in; or sit-in.

Picketing

A strike is often accompanied by picketing, which may be organised by the trade union as part of its strategy to bring attention to the dispute and to persuade the workforce to join in the strike. Unlawful picketing may expose the union (and the pickets themselves) to liability in tort (and therefore the risk of an injunction to curtail the unlawful activities). It may sometimes involve criminal activity.

Picketing is only lawful where all of the following conditions have been met.

  • The picketing is done only by the following people near their (last) place of work:
    • a worker (who is employed by the employer who is a party to the dispute)
    • an ex-worker of that employer (so long as that employer was his last employer and he was dismissed in connection with the dispute or his dismissal is one of the reasons for the dispute); or
    • a trade union official who represents and is accompanying either of the above.
  • The purpose of the picketing is to obtain or communicate information or to persuade any person to work or abstain from working.
  • The picketing is done peacefully; in other words, there must be no intimidation or threatening behaviour.

There is a code of practice on picketing, which may be taken into account by a court or tribunal in claims and which recommends that "mass picketing" should be avoided, as it can lead to intimidation by sheer force of numbers.

Lawful picketing may give rise to a limited form of lawful secondary action, for example, pickets may persuade delivery drivers to turn away without making their delivery to the employer.

Secondary action

Other than the picketing example above, “secondary action” (often referred to as "sympathy" or "solidarity" action) is unlawful.  An example would be where employer X is in dispute with its own workers over pay.  A union official threatens A that unless it gives in, he will ask the workers of employer Y (a supplier of X) not to deliver any supplies to X.  It is secondary because the employment contracts being interfered with are those between Y and its own workers and Y is not a party to the dispute.

What can employers do in response?

Legal remedies against employees for taking industrial action are limited: notably, the court cannot order an employee to work or even to attend the workplace. However, employers may legitimately withhold all or part of employees' pay if they are in breach of contract and may also dismiss some or all of them, depending on the circumstances.

The unfair dismissal rules in this context are complex and depend on whether the industrial action is “unofficial”, “official”, or “protected”.  In brief, employees dismissed while taking part in unofficial industrial action (ie where it is not authorised or endorsed by a union) cannot normally claim unfair dismissal, even if the employer is selective about whom it dismisses.  Employees dismissed while taking part in official industrial action can only claim unfair dismissal if there is selective treatment (ie where the employer selectively dismisses or re-engages staff) or if the action is protected by virtue of a lawfully-organised union ballot.   Where the industrial action is "protected industrial action" ( ie union has complied with the balloting and notification requirements) the rules are more complicated and there are protected periods of time during which any dismissal would be unfair.