It is inevitable that some of today’s HR managers will have limited experience of industrial action, because there has been relatively little of it around since the bad old days of the 1980s. For the same reasons, this is also true of employment lawyers, many of whom have not experienced a strike at first hand during their entire professional careers.
The industrial relations legislation first introduced by the Thatcher government (and only tinkered with later by Labour) is labyrinthine in its complexity. This leaves the perturbing possibility of unions causing widespread disruption while management and lawyers scratch their heads and wonder whether there is anything they can do about it. Delay on these issues can make the difference between success and failure in stopping the industrial action dead in its tracks.
It is obviously preferable, if possible, to manage industrial relations so as to avoid disruption but in some cases strikes will be unavoidable. Well-advised employers should be able to spot when a planned strike is unlawful and avert it by promptly threatening the union with a High Court injunction. Very often a threat is enough, because the union will take its own legal advice and may well be advised that the risks of going ahead with the strike are too great.
The balloting and notification requirements in the legislation are difficult for unions to comply with and non-compliance will often be fatal to the legality of the strike. In one case, the union backed down after we politely pointed out relatively minor flaws in their balloting procedure.
Serious questions are likely to arise in the next few months about the limits of when a strike can be declared illegal for being ‘political’ rather than in furtherance of a trade dispute, or for being ‘secondary action’ rather than a dispute with the employer itself. The use of agency workers to cover for strikers will be scrutinised. The consequences of getting these points wrong or spotting them too late are potentially very severe.
It is also important for those advising employers to have a tactical feel for when not to apply the full rigour of the law. Industrial relations can be a battle, but it is mainly a battle for hearts and minds. An employer we recently worked with had good grounds to obtain an injunction against a planned one- day strike. After much debate the decision was that to threaten legal action would only inflame matters and it was preferable to let the strike go ahead and keep talking to the union. Of course, we made sure they knew (that we knew) that the strike was unlawful.
Perhaps, unlike being a BBC TV presenter, advising on such issues is one job where a few grey hairs and wrinkles and the odd scar provide a distinct advantage.
Robert McCreath is partner and employment lawyer at Archon Solicitors
