Southern rail fine: Can employers really blame the trade unions?

Southern’s owner has been fined £13.4 million, but was the company or the unions primarily to blame for disruption?

The fine Govia Thameslink Railway (Southern's owner) received due to poor performance was lower than it could have been, to reflect the impact strikes by trade unions and high levels of sickness absence had on service delays. But in many organisations this would be seen as a result of a failed people strategy.

In this case the regulator viewed strikes and sickness as mitigating factors, suggesting the employer was less culpable. But no matter how much sympathy or understanding one might have isn’t that rewarding failure?

There are no easy solutions or quick fixes for an intractable dispute. There is always a long-term context; but there are ways to avoid debacles like the Southern rail case, and practical improvements that can be made.

Firstly, there must be a clear vision of how IR would work in an ideal (but realistic) world – this vision should be nailed to every mast. All decisions need to be seen in this context and taken with the avowed aim of moving closer to it. Employers led by their HR/IR support may be wise to consider the benefit of effective industrial relations, which will be imperative if things get worse before they get better. There is rarely a comfortable, risk-free route to industrial peace.

With a vision in place, we need acceptance at the most senior level that there may be bumps in the road but that it will be worth it. Half-hearted attempts are doomed to failure and worse than no attempt at all.

Secondly, there needs to be a collective agreement in place that meets the needs of the business while achieving a fair settlement for colleagues. If the collective agreement is not fit for purpose, or a relic of a previous age, look to change it. Ensure that your collective agreement properly defines which issues are subject to negotiation, which issues are subject to consultation, and which issues are subject to the requirement to inform.

If these are not defined union representatives may claim negotiation rights and repeated failures to agree over a wide range of issues. This is often the cause of paralysis and dispute. Contemplate entering into discussion about change or giving notice to terminate unsuitable agreements. Identify the source of disputes, whether this be issues with the workforce or difficult behaviour of an individual representative. Either way it must be dealt with.

When these professional relationships break down you may have to contemplate ways of mending or ending them. The collective agreement and the strength of relationships with the union at senior levels may provide a constructive way of addressing such problems.

In some circumstances it could be appropriate to have a dialogue with the workforce about whether the incumbent union is fit for purpose, and effectively representing them.

Do not feel bound by the old ways of communicating. It can sometimes be appropriate and effective to encourage joint forums or even social media when issues arise. Disputes can form and exacerbate because an employer cannot get a message across. Creative and constructive ways of communication can avoid that message vacuum.

Both sides should see this GTR fine as a collective failure. The employer should rethink its IR strategy, or better still create one, by properly analysing the ideal union relationship and how to achieve it. Finding areas of common interest is a start. Redefining the relationship may be necessary, with derecognition and building from the ground up.

Finally the high levels of sickness absence that factored into the fine could also point to a failure in fairly and consistently managing sickness absence.

The union’s co-operation or otherwise towards those aims can often act as a litmus test of whether there is truly a common interest, and therefore the potential of a constructive relationship.

Darren Maw is managing director at employment law specialist Vista