Normally no more than one million working days per year are lost to strikes. However, this year we expect the 2011 figure to be beaten.
What is meant by industrial action?
The most common form of industrial action is a strike, where employees refuse to work. Other forms of industrial action that can lawfully be taken include refusing to work overtime, work-to-rule and sit-ins.
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Is industrial action permitted by law?
Yes, although there are strict rules to follow for the industrial action to be lawful. Ensuring it is lawful is crucial for unions and staff because, if it is lawful, the union and staff will be protected from dismissal and other detrimental action.
If the industrial action is not lawful then an employer could, for example, fairly dismiss the striking staff for breaching their employment contract by refusing to work.
If an employer does not currently formally recognise a trade union, can a union force its way in so that the employer has to formally recognise them?
We often speak to concerned employers who perceive the involvement of a union as a potential hindrance to their effective relationships and communication with their staff. That can be true, but not always.
A trade union seeking to be formally recognised by an employer will normally first approach the employer and try to reach an agreement with the employer over the terms of a collective agreement.
However, if an employer is not prepared to reach an agreement, the union can go through the statutory recognition process. This involves the following key steps:
The union must first write to the employer seeking formal recognition. If that is unsuccessful the union can make an application for recognition to the Central Arbitration Committee (the CAC).
What does a union have to do before it can lawfully allow its members to strike?
For industrial action to be lawful certain conditions must be met which include:
- There must be a trade dispute between a company and its employees, which cannot be resolved through informal negotiation. This could be a dispute about pay, working conditions, proposed changes to contract and such like.
- The industrial action must be backed by a properly organised ballot of union members.
- The union must notify the employer it is balloting members for strike action and, if they have majority support, of the date(s) of the proposed industrial action.
- There needs to be at least a 50% turnout of members balloted and, if there is, a majority need to vote in favour of the strike action. If, for example, you have 500 union members in your company, at least 250 of them need to cast a vote. If say 300 of them vote, then the Union will need 151 or more of its voting members to vote in favour of industrial action.
Can an employer do anything to stop staff taking strike action?
If the employer believes that the Union has not followed the balloting or notification rules, the employer can apply to the high court for an injunction.
The court will grant an injunction preventing the strike action if there is clear evidence of non-compliance by the union with the rules, as happened in November 2019 when Royal Mail successfully obtained an injunction preventing the largest postal strike in a decade from taking place just before the 2019 general election and Christmas postal rush.
Does the employer have to pay employees who go on strike?
If employees choose to go on strike, they are not entitled to be paid for the days they spend on strike. That is why the short-term financial impact on staff involved in a protracted trade dispute can be significant, as happened in the railway dispute in 2017 and 2019 over the introduction of driver only trains.
What protections are there for the Union or their members if they do take strike action?
Provided the union has gone through the correct procedure to ballot its members on strike action, when the staff go out on strike the employer cannot lawfully dismiss them for not working. That is the case whether the staff are members of the union, or not.
Why are there suddenly so many companies and industries who seem to be facing the threat of strike action?
Rising inflation and the much-publicised increased cost of living are putting serious financial pressures on UK workers. Whilst this is leading to some wage inflation, if pay rises do not match the additional costs workers are having to meet, then that will reduce disposable income.
This is a great opportunity for the unions to increase their membership, as disgruntled workers see the unions as the best hope they have of getting better pay and other terms and conditions.
Industrial action in the public sector is expected to rise, given that the government is talking about modest pay rises in the public sector which fall a long way short of the current inflation rate of 9%.
To put this into perspective, at the recent annual conference of the British Medical Association, it was said that doctors had seen a 30% reduction in pay since 2008, when inflation is factored in.
Are there any plans to reform the law around industrial action?
In June 2022, the government announced it would be changing the law so as to allow employment agencies to supply temporary staff to businesses who need staff to cover for staff who are on strike. The government is trying to reduce the impact strike action has on the public by ensuring businesses and public services can continue operating.
Greg Burgess is employment partner at law firm DMH Stallard
