In this blog series, Astra Emir, practising barrister and author of Selwyn’s Law of Employment, explains what UK employment law says about some of the important issues faced by employers and employees.
Every day there are reports of further strikes. Chaos on the railways, the London Underground brought to a standstill, airlines, teachers, the NHS: the list goes on. On one hand, people are fighting for their rights, some would say justifiably. On the other, employers are trying to keep things running. While strikes cause huge disruption for the public, they are also one of the few levers available to employees to bargain for their position.
This blog post looks at what the main rights and requirements are, both for employers and employees, once a strike has been called.
The summer of discontent?
The sheer number of strikes being planned have led to concerns that we may go back to the days of the “winter of discontent” in the 1970s. It is important however to note that the legal landscape is now very different. Since then, not only has overall membership of the unions declined drastically, but there have also been a number of changes brought in by various Conservative governments, the latest being the Trade Union Act 2016. This tightened the balloting requirements so that there now has to be at least a 50% turnout of the union membership for a vote on whether industrial action should take place and, for key public services, at least 40% of those eligible need to vote in favour of a strike. Indeed when the Trade Union Act was passed, there were fears that it would become extremely difficult to hold a strike in future. Clearly the current cost of living crisis has overcome these considerable hurdles and led for the ballots to be successful, and so we are facing more strikes than there have been for many years.
Protection of employees
In order for employees to be protected, they have to be taking part in official industrial action. This means that it has to be called by a recognised, independent trade union, the action has to be “in furtherance of a trade dispute,” and the balloting and other procedural requirements have to be within the rules set out in the legislation.
“In order for employees to be protected, they have to be taking part in official industrial action.”
The employee does not have the right to be paid for any days they are on strike (unless their contract says otherwise), but the job will be protected. If an employer dismisses them for taking part in the official industrial action then this would be an automatically unfair dismissal, which means that the person does not have to have been employed for two years before bringing a claim, unlike most other unfair dismissal cases. (Note that a strike does not break continuity, but the time on strike does not count towards computing the time that someone has been employed.)
Indeed, the employee will be protected, not just for taking part in a strike, but against a detriment for any official industrial action, such as overtime bans or a work to rule, for 12 weeks from the date at which industrial action (of whatever kind) began.
After 12 weeks, the dismissal of those taking official action becomes potentially fair, provided the employer acts reasonably and consistently, treating all employees alike. In addition, the Employment Relations Act 1999 requires an employer to show that it took “all reasonable steps” to resolve the dispute if it wants its action in dismissing the employees concerned to be judged as reasonable.
The protection also applies to non-union members who take part in a strike.
One issue that often arises is that of picketing. The law says that striking employees are permitted to picket peacefully at or near their own place of work, as are the trade union officials who represent them. This can only be for the purpose of “peacefully obtaining or communicating information, or peacefully persuading any person to work or to abstain from working.” Any other activity is not protected. If someone wants to cross the picket line, then they must be allowed to do so. Every picket line has to have a readily identifiable picket supervisor, wearing an armband or tabard, who must carry a letter stating that the picketing is approved by the union. “Flying pickets,” where employees of another employer come to join the picket line, are not permitted.
“The law says that striking employees are permitted to picket peacefully at or near their own place of work.”
There is also a Code of Practice on Picketing, which suggests a maximum of six people per picket line. The Code is not legally enforceable but can be taken into account in legal proceedings.
If the rules relating to picketing are not observed, for example when the picketing ceases to be peaceful (i.e., goes beyond communicating a message and seeking to persuade in a peaceful fashion) the immunity is lost, and the employer can apply for an interlocutory injunction to stop the strike from continuing. (Note that they can also apply for an injunction, for example, if the balloting requirements in the legislation have not been properly met, or if the strike is unofficial for another reason.)
Rights and duties of employers
Apart from applying for injunctions, which are only available in limited circumstances, there are a number of other things employers can do to keep their services running. They can outsource to a third party, and there is nothing to stop the employer using workers from another part of the business, if those people have the relevant skills and their employment contract allows them to be redeployed in that way.
Until recently, the law prevented an employment agency from providing an agency worker to cover for the striking worker. This was a criminal offence on the part of the agency and subject to an unlimited fine.
On 21 July 2022, however, new regulations came into force to repeal the prohibition on employment agencies providing staff to cover for striking workers, which means that an employer can now hire agency workers to fill the gaps.
This legislation was the subject of a consultation and had been expected to be part of the Trade Union Act 2016, but it did not happen at the time. With the uptick in the number of strikes recently, it then became a priority for the Government.
“On 21 July 2022, new regulations came into force to repeal the prohibition on employment agencies providing staff to cover for striking workers.”
There are a number of issues with the new legislation, however. Not only does it undermine the bargaining position of the unions and striking workers, and indeed the point of having a strike in the first place, but also, according to Neil Carberry, chief executive of the Recruitment & Employment Confederation (REC), it puts agency workers and agencies in an invidious position if they have to cross picket lines.
More practically, it may be questioned whether the proposed legislation will make much difference. It might in some industries, e.g. nursing or perhaps teaching, where there is a strong culture of using agency workers for cover, but it is likely that it will be more difficult to replace train drivers and skilled airline staff at short notice.
In addition, if an employer does choose to go down this route, it is extremely likely to lead to bad industrial relations and the escalation of the strike action, which would defeat the purpose of the legislation. It remains to be seen what the outcome will be.
Please note that this an overview of the law and is not intended to be legal advice, as each case depends on its own specific facts.