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What if a Business Faces Industrial Action

Using effective communication strategies and building trust with the workforce are two practical ways businesses can avoid the most serious disputes and conflicts.

Still, if your business faces lawful industrial action it is important to be aware of your rights and responsibilities and the effect it can have on pay and working records for employees.

Workplace Strikes and Industrial Action UK

The use of arbitration (e.g. a nonpartisan third party) is the informal, and recommended, method for resolving workplace disputes.

Furthermore, working with a trade union (or non-union employee representatives) is another way to solve an escalating dispute.

The Advisory, Conciliation and Arbitration Service (Acas) website contains free and impartial advice on the rules and best practices for handling disagreements.

Note: The ‘Acas guide to non-union representation‘ is an advisory booklet that explains how involving employee representatives can encourage better understanding and improve employment relations.

So, the question is:

What will happen if you are unable to resolve a dispute? In some cases, your workers may consider taking lawful industrial action if they are members of a recognised trade union.

Even so, before a trade union can make a call for workers to take industrial action, both of these circumstances must apply:

  • The employer and the workforce are unable to solve the dispute by informal negotiations or arbitration.
  • A majority of the members who are involved in the dispute also support it through a postal ballot. The union must decide which members it wants to ask to take industrial action before it organises the ballot.

The two common types of lawful industrial action are ‘a strike’ and ‘action short of a strike’ (e.g. refusing to work overtime). Employers do not need to pay workers for any hours lost as a result of them being on strike.

Using Agency Workers to Cover Strikes

Any agency workers who are already in place as part of the regular business operations can continue working as usual during a strike.

But, during lawful industrial action agencies must not supply workers with the specific intention of covering work that is not getting done.

Dismissing Staff for Taking Industrial Action

Employers need to be mindful about dismissing workers who take industrial action. Doing so can result in a claim for unfair dismissal, especially if they dismiss:

  • A number of workers for participating in the action, but others do not get dismissed.
  • All their employees and then re-hire some of them back into the workplace.
  • Employees in the first twelve (12) weeks of lawful industrial action for being on strike.

Important: Another section explains how some employees may be protected from unfair dismissals for a period longer than twelve weeks.

When is Industrial Action Lawful?

In the United Kingdom, industrial action must be lawful for trade unions to have statutory immunity. As a result, the union and its members would be protected from legal action in civil law.

Even so, if any strikers or organisers break the law they would not receive legal immunity in criminal law. Typical examples would be trespassing or ‘willfully’ damaging property.

For industrial action to be lawful in the United Kingdom, there needs to be a dispute between the employer and the workers about an employment-related issue, and (both):

  • An industrial action ballot (properly conducted).
  • A written notice of industrial action sent to the employer.
Industrial action must not be:
  • Taken by workers when their employer is not involved in the trade dispute (called ‘secondary action’).
  • In support of an employee who was dismissed for taking unofficial industrial action.
  • Carried out in violation of the law (called unlawful picketing).
  • Used to promote closed-shop practices (meaning employers are agreeing to employ union members only) or to enforce trade union membership against non-union firms.

Note: Employers can download further guidance about ‘Industrial action and the law’ and ‘The Code of Practice on industrial action ballots’ on the GOV.UK website.

When You Can Take Civil Proceedings

Unions or individuals who fail to follow the lawful conditions lose their statutory immunity. The result means the employer (or anyone else affected by it) can take civil proceedings in the courts, providing (all):

  • The action is in breach of a contract that the employer (or individual) is party to.
  • An unlawful, unprotected act has been threatened or it actually occurred.
  • The result of the action means the employer (or individual) actually suffered, or is likely to suffer, loss.
Effect on Employee Pay and Records

Even though employers can ask their employees whether they are intending to strike (or not), there is no legal requirement for them to confirm their plans.

But, knowing the intentions of your employees may help you prepare for the effect that it would have in relation to strike pay and working records.

Deducting Pay During a Strike

You must only deduct the amount that your employee would have earned during the strike. So, how do you work out how much pay to deduct during a strike?

As a rule, the way your employees get paid (e.g. monthly, weekly, or hourly) and the terms of their employment contract will determine your calculations.

But, employers must not deduct pay from any employees who were not supposed to be working on the actual day(s) that the strike took place.

Paying Employees While on Strike

In the United Kingdom, employment legislation does not force employers into paying their employees while they are on strike.

The term ‘partial performance’ refers to situations when workers are taking ‘action short of a strike’. In essence, it means they are refusing to perform some part of their contractual work (e.g. not working overtime).

Employers can refuse to accept partial performance. But, to comply with employment laws you would need to tell your employees that:

  • They should only be attending work if they are going to fulfil their contractual duties.
  • Failing to fulfill their employment contract terms and conditions would mean you have no requirement to pay them.

Note: Employers who do accept partial performance would need to pay their staff for any work they carry out as part of their working arrangements.

Effect on Continuous Employment

Returning to work after being on strike does not affect the rules of continuous employment. Thus, the employer would continue to employ the same employees.

It also means the terms and conditions of employment contracts continue to apply during strikes and afterward.

Length of Service

It is important for employers to be aware that days when employees are on strike do not count towards ‘total length of service’ (e.g. when working out pensions or statutory redundancy payments).

Picketing Rules During a Strike

In most cases, union representatives and some of the workers will stand outside the workplace and explain the reasons for striking. The aim of this ‘picketing’ is to persuade others to take part in the industrial action.

But, picketing is only lawful in the United Kingdom if it (all):

  • Takes place at (or near to) the strikers’ normal place of work (exception apply for mobile workers).
  • Is carried out in a peaceful manner and does not result in abusive or threatening behaviour.
  • Does not break any criminal laws (e.g. cause damage to property or obstruct public roads or highways).

Note: As a rule, employers can take legal action against unlawful picketing. The ‘Code of Practice: picketing‘ has guidance on what action you can take if you are affected by a picket or associated activity.

Non-Union Employees Covering Strikes

Employers can ask any non-union employees to help cover regular work duties, even during a strike, providing:

Non-union members also have protection against dismissal while they are on strike and, providing the industrial action is lawful, they have the same rights as trade union members.

Hiring Agency Staff

Employers must not hire agency staff for the purpose of providing temporary work cover during a strike. But, if the agency staff are already in place as part of the normal business, they can continue as usual.

If Your Business Faces Industrial Action in United Kingdom