An HR Director in France was recently 'taken hostage' by employees during an industrial dispute. Whilst this is an extreme example, employers wanting to avoid or manage industrial action would do well to consider the following points
The legal position
Industrial action encompasses strikes, 'work to rule', overtime bans and 'go-slows'. Employees who participate in industrial action will normally be breaching their contracts of employment. In backing industrial action, the union will be inducing the employees to breach their contracts of employment, which gives rise to liabilities for the union. However, the union will have immunity against any claims by the employer if the industrial action takes place in accordance with the law.
Challenging industrial action
Challenging industrial action is complex and can be costly. The main mechanism for stopping industrial action is to apply to the High Court for an interim injunction against the union. However it will only be possible to do so where unlawful industrial action is threatened.
An employer seeking to challenge the lawfulness of industrial action should consider whether:
- there is a genuine trade dispute and action is not being taken for a prohibited purpose;
- ballot requirements have been complied with; and
- notice requirements have been complied with.
Employers should note however that non-material failings in process are unlikely to justify an injunction.
What should employers do if industrial action is threatened?
Where an industrial dispute looks inevitable, employers will need to have contingency plans in place. Employers should consider the following top tips for good industrial relations:
- notify customers and suppliers of potential strike action and consider how to meet customers' needs during the industrial action.
- consider what temporary labour resources are available. Whilst there is little legal restriction on an employer moving staff or taking on new staff directly during any industrial action, an employer will be unable to use agency workers for the purpose of undertaking work normally performed by a striking worker or undertaking duties normally performed by any other worker who has been assigned to cover the striking worker.
- notify non-participating employees of any industrial action and give them assurance that they will be protected from any unlawful picketing or other detriment.
Negotiate and communicate
- continue to negotiate with the unions directly and push for third party assistance such as from ACAS.
- try to persuade employees in measured and non-confrontational communications not to participate by informing them of the consequences of striking both for the business (financial and reputational damage) and for themselves (loss of wages for any strike days).
- adopt and maintain a calm and reasonable attitude avoiding incendiary statements and actions.
On the day
- monitor picket lines for unacceptable behaviour - if the picket line becomes intimidating then the union can lose its protection from claims for damages caused to the business.
- ensure payroll is notified of the strike and makes appropriate deductions from the pay of those participating in the strike.
- employees 'working to rule', on a 'go slow' or operating an overtime ban may not be acting in breach of their contracts of employment. However, if such action would be a breach of contract, the employer can either require the employees to perform their contractual obligations in full or stay at home and not be paid (a 'lock out'), or accept partial performance. Whilst a useful negotiating tactic this can inflame relations between the union and the employer. Additionally, the laws regarding lock outs and part performance are complex; employers should therefore obtain legal advice on part performance when industrial action is threatened.