As the rubbish piled up on the streets of Leeds, many commentators started to compare the current situation with the so-called Winter of Discontent in 1978-79, during which there were widespread strikes by local authority trade unions demanding larger pay rises for their members.
There are undoubtedly parallels between 2009 and 1978. Then, as now, Britain was in the grip of a recession. The strikes took place against the backdrop of the dying days of the Labour administration and contributed to the success of the Conservatives in the General Election of 1979.
However, despite the parallels there are striking differences between the 1978 industrial relations landscape and today. We are living in another millennium and industrial relations have altered with the times.
The trade unions have a fraction of the influence they had in their heyday of the 1970s. Trade union membership peaked in 1979 and has been declining ever since. The latest statistics indicated that union membership had fallen to 6.9 million at the end of 2008, almost half what it was in 1979.
The unions also face much more stringent legal restrictions on industrial action. There has never been a positive ‘right to strike' under English law; the limited freedom to organise strikes derives from the statutory defences to claims by employers where strikes interfere with their business. These were amended and heavily qualified by the Thatcher Government's reforms in the 1980s and further restricted by legislation in 1999 and 2004. The risk for trade unions of employers being able to obtain an injunction or damages in respect of industrial action has steadily increased since the 1970s. Unions wishing to organise industrial action without incurring liability now have to follow a complex, technical balloting procedure that can be challenged by employers. These legal restrictions are the main reason why we now rarely see the wildcat strikes and secondary picketing that were a key feature of industrial unrest in the 1970s .
However, it is clear that, in the current environment, employers need to have a clear strategy for dealing with industrial relations flashpoints and, if all else fails, contingency plans to keep the business operating if sections of the workforce are out on strike. Employers need to react quickly and decisively when industrial action is threatened. Although unions have statutory protection where industrial action is ‘in contemplation or furtherance of a trade dispute', that protection is lost where the union takes action without first balloting the workers or fails to give the employer proper notice. If industrial action is unlawful, then those participating and organising it can be prevented from pursuing it by an injunction and/or employees selectively dismissed without recourse to an unfair dismissal claim. Time is of the essence for employers and plans should be made as soon as there is a hint of unlawful action.
Even where strike action is lawful, businesses do need to have contingency plans in place. The recent postal strike has highlighted the extent to which employers may be able to make use of temporary workers to keep core business areas working. This can be problematic, as there are restrictions on agencies supplying temporary workers to cover the duties of striking workers. These restrictions are on the agency, however, not the employer and do not in any event apply to workers engaged directly by the employer. Employers should also consider whether contracts of employment allow them to require workers who are not striking to cover the duties of striking colleagues. Consideration should be given to training managers and other workers to enable greater flexibility and to ensure others can step in to cover striking workers if needs be
Although traditional union influence has declined, unions have not been slow to take advantage of new developments that allow them to reach a younger audience and to organise collectively by more efficient means. The internet has allowed them to communicate more effectively with members and potential members. Unions are increasingly attempting to rally public support through social networking sites like Facebook and adopting new online campaigning methods to widen their sphere of influence. And for the first time in over a decade, union membership is on the rise again.
Even if employers make a strategic decision not to engage with such tactics, they need to be prepared for them.
Guy Lamb is employment partner at DLA Piper
