Industrial action in 2023: the key considerations for employers

In view of the multitude of strikes which have taken place in the UK recently (as well as those planned for the coming months), we explore questions around trade unions and industrial action, how such action affects employers and employees, and how employers can build effective relationships with trade unions in order to try to avoid the disruptions strikes inevitably cause.

What are trade unions and what is their role?

Trade unions are organisations which aim to represent and protect the interests of workers and employees (members). If a union is recognised by an employer they will consult and negotiate with that employer on behalf of their members, typically over working conditions such as pay, hours and holidays.

What is trade union recognition?

Trade union recognition is where an employer formally acknowledges and recognises a particular union or unions who can bargain on behalf of a group or groups of employees either in the entire establishment or in a particular department or unit in an organisation.

What is collective bargaining?

Where an employer officially recognises a union, the employer and union will negotiate a recognition and bargaining agreement which will set out a framework for the relationship between the parties. The agreement can include the topics and terms the employer will negotiate, consult and discuss with the union about, at what stage the employer will engage with the union, what happens if there’s a stalemate, what facilities the employer will make available to the union representatives, arrangements regarding time off to allow representatives to perform their duties effectively, etc.

Where an agreement on a particular issue is reached as a result of collective bargaining, the employer and union will usually set this out in a collective agreement. The agreement will contain the terms that will then apply to all staff within the bargaining unit that the union represents, regardless of individual employees’ membership of the union.

How can employers work effectively with trade unions?

Trade unions can play a vital role where they are involved in areas of an organisation. They represent employees’ interests and can bring balance to the relationship between employers and employees. It is often also preferrable for an employer to discuss and agree issues with a few representatives as opposed to the entire workforce, especially in large organisations across numerous locations. In addition, when an employer is legally required to collectively consult with employee representatives (such as in a collective redundancy consultation) the union representatives are already in place so consultations can start without having to first elect representatives.

An employer wanting to work with a union should ideally set out a formal agreement which covers the relationship with the union(s) it officially recognises.

CIPD has recently published advice for employers on how to work effectively with trade unions. It suggests:

• treating unions as key stakeholders in the business;
• seeking to understand the position and interests of the union(s);
• developing relationships with trade union representatives;
• collaborating with managers to deal with issues involving unions and supporting managers to develop working relationships with local representatives; and
• training managers in negotiation skills.

CIPD recommends that in consultations with trade unions, employers should be:

• clear on what they want the end result to be;
• flexible and alive to areas of mutual gain;
• willing to compromise to agree a way forward;
• prepared to listen and try to understand the concerns of the other side.

What if consultations/ negotiations fail?

It is important to have a fall-back option – or ideally a range of options. Before commencing any consultations or negotiations, the employer should contemplate the consequences of withdrawing the proposal or imposing it. Keep in mind, however, the union’s fall-back position may well be to ballot for industrial action if agreement cannot be reached.

Consideration should also be given to introducing an impartial third-party mediator or conciliator such as ACAS.

It may, in some situations, be appropriate to adjourn discussions and to review the position. Developing a revised proposal, taking into account some of the union’s views and objections, may ultimately help reach agreement.

What if we don’t recognise a trade union?

Some businesses may have consultative bodies of elected employee representatives such as employee forums or councils. Again, a form of agreement is usually put in place to establish the parameters of the body and when it will be engaged. Such representatives can then sometimes be consulted by employers where the employer has to collectively consult, provided that the employee representatives were elected with such a mandate.

However, if an employer doesn’t recognise a trade union or if it doesn’t have an existing body with a mandate, the employer must allow employees to elect representatives at the appropriate time.

Only trade unions can lawfully ballot and call members out on industrial action.

What is industrial action?

The term ‘industrial action’ includes any concerted action taken with the purpose of putting pressure on an employer. Generally, there are two types of industrial action:

1. Going on strike (e.g. where employees act together and stop working)
2. Actions short of a strike (e.g. refusal to work overtime and work to rule)

The Strikes (Minimum Service Levels) Bill was introduced into Parliament on 10 January 2023 with the aim of mitigating disruption caused by strikes. If enacted, the Bill would introduce regulations which will allow the Secretary of State to prescribe minimum service levels during strikes in certain sectors, such as healthcare.

What are the common employment issues arising out of industrial action?

• Compliance with balloting rules – has the union followed the correct process in balloting its members?
• Notice of action and the roles of pickets – has notice been correctly served on the employer and do any pickets overstep what can lawfully be done?
• The effect on employment rights of staff who take industrial action – can an employer take any action against those who take industrial action?
• Pay deductions and how to handle them – can you deduct pay from those who are taking industrial action and how do you know they were taking part in the action and not absent for another unconnected reason?
• Non-victimisation of those involved in, or not involved in, industrial action.

What can an employer do?

Employers are entitled to withhold employees’ pay for the time that employees do not work whilst they take industrial action.

You cannot legally force a worker or employee to stay at or return to work where a ballot has been lawfully and properly organised.

Whilst employees are technically in breach of their contract of employment when they participate in industrial action, great care should be taken if you are considering dismissal as there are various statutory protections which protect employees who take industrial action.

As of 21 July 2022, Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 was repealed to allow employers to hire agency workers to fill any gaps left by striking employees. However, several unions have commenced legal proceedings for judicial review so it remains to be seen whether this repeal will stand.

Can I stop employees taking industrial action in the first place?

Workers and employees have the right to take industrial action. Non-union members have the same rights as union members not to be dismissed as a result of taking official legal industrial action.

However, taking industrial action is likely to mean that an employee is in breach of their employment contract, and you can withhold pay for any period they were on strike.

An employer cannot dismiss an employee if they participate in official legal industrial action which is called because of a properly organised ballot, where the dispute is between workers and their employer regarding terms of employment, and where the employer is given a detailed notice of the proposed action seven days before it begins.

If an employee is dismissed for taking industrial action at any time within 12 weeks of the industrial action starting, they can claim unfair dismissal without needing two years’ service.

An employee’s childcare arrangements are impeded by teachers’ strikes which impacts upon their ability to work – what should we do?

In February and March 2023, the National Education Union will be striking over pay disputes.

Employees are entitled to take reasonable time off to care, or arrange care, for family and dependants due to unexpected problems or emergencies. This is called ‘dependant leave’. Employees are protected from disciplinary action or dismissal if they take such leave. 

An employee is not entitled to be paid for any time off, unless this is allowed in their contract of employment or they arrange to take paid annual leave. Alternatively, an employee may ask to work from home, if they are able to, whilst their children are not in school. Some employers are pre-empting this and allowing employees to work from home whilst caring for their children during the teachers’ strikes (as they did in the early days of the pandemic when childcare settings were closed).

This article was written along with Hannah Schofield, trainee solicitor at Gateley Legal.