The past 18 months have seen a number of high-profile industrial disputes and further industrial action is expected this autumn. Employers need to have a clear strategy for dealing with industrial relations crises and a key part of that strategy is contingency planning. If all else fails, can you keep the business operating in the event of a strike? A plan to deal with industrial action should be a key component of every employer's business continuity plan.
An employer that needs cover for striking workers might consider a number of temporary actions, such as requiring non-striking workers to cover, or bringing in temporary workers. However, employers should be aware of the potential risks and liabilities.
Often the best option is to keep things ticking over, using the staff who are not on strike. For this to be a viable option, employers need to plan ahead to ensure that employees' contracts of employment contain the necessary flexibility to allow you to require them to carry out different duties. Employees who may be called on to perform different roles will need training; for example, management will need training to do 'front-line' jobs in order to be able to maintain a skeleton service in the event of strike action. Finally, if employees are being asked to undertake the work of striking staff in addition to their own work, there is a risk they may work excessive hours, in breach of the Working Time Regulations.
There are also risks in using work experience students or interns to perform work normally undertaken by striking workers. Using interns and work experience students during a strike will jeopardise their status as genuine volunteers giving services freely and voluntarily. To avoid interns acquiring worker status, there must be no obligation on the organisation to provide work or on the intern to attend work. If the delineation between interns and work experience students and the general employee population is not clear, they may acquire rights as workers under minimum wage and working time laws.
If there is no obligation on the intern to attend and do work, then it is unlikely that a worker relationship will be implied. However, if interns are asked to cover work that would normally be carried out by striking workers, they are much more likely to be considered to be a worker. If the intern qualifies as a worker, the employer must pay the National Minimum Wage, as non-payment is a criminal offence.
Using interns to do the work of striking staff also has the potential to create an additional industrial relations problem. A row recently erupted between the National Union of Journalists and Johnston Press over allegations that the publisher may have been using work experience students in order to get newspapers out when journalists at the Doncaster Free Press, the Selby Times and the South Yorkshire Times went on strike.
Alternatively, an employer may consider turning to an agency to supply temporary staff. However, this is problematic. In 2010, industrial action by Royal Mail workers put the spotlight on the employment agencies that supply temporary workers. At the height of the strikes, Royal Mail allegedly engaged up to 30,000 agency workers to work in temporary sorting offices. The Communication Workers Union (CWU) claimed that these agency workers were engaged to perform work usually carried out by striking workers. It threatened to bring legal proceedings against Royal Mail.
The basis for the proposed legal action was the Conduct of Employment Agencies and Employment Businesses Regulations 2003. These regulations place a general prohibition on employment businesses introducing or supplying workers to perform the duties either of a worker who is participating in industrial action, or a worker who is covering the duties of another worker who is participating in industrial action. Any agency worker already supplied who leaves can be replaced by another agency worker, but should not be reallocated to the work of a striking worker. Although the primary prohibition is on the agency, the employer may also be committing a criminal offence by asking the agency to supply temporary staff.
However, there is nothing to stop employers hiring workers directly to cover for striking staff on a temporary basis. A union must give an employer one week's notice of intended industrial action, which may be sufficient time for the employer to find staff to work on a fixed term contract for the duration of the strike.
Susan Fanning is a partner at law firm DLA Piper UK
