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Industrial action: How we can help your business navigate negotiations with trade unions, strike action and injunctions

Industrial action presents significant business risk for employers with unionised workforce populations. Strikes cause severe disruption to business operations and can have a knock-on effect on supply chains, for example where production is slowed or deliveries can’t be accepted, which are matters that can lead to contract breaches. Employee relations issues can also expose the business to negative publicity.

There were fewer trade union disputes from the late 1990s onwards. However, there has been a significant shift in workforce unrest following the pandemic and inflationary pressure mounting through the wider economy and impacting on the cost of living.  Within this context, decisions taken by employers relating to pay, changes to contract terms and redundancies have come under closer scrutiny.  Employers are seeing increasing levels of challenge (even where generous pay rises are proposed) with unions supporting action from their members.

Recent well-publicised examples of action taken by unions include the National Union of Rail, Maritime and Transport Workers successfully balloting for industrial action by rail workers and Usdaw successfully obtaining an injunction against Tesco to prevent the ‘fire and re-hire’ of employees in order to remove a long-standing benefit.  We are also seeing an upturn in difficult negotiations between our manufacturing clients and the unions, in some cases leading to strike ballots and industrial action.

Human Chain Paper

Industrial action: an overview

The law relating to industrial action in the UK is complex and has not been high on the legal risk agenda during a long period of stability in industrial relations.

Industrial action may consist of strike action (a stoppage of work by the striking population entirely) or action short of a strike, such as ‘work-to-rule’ (employees perform their duties strictly to the letter of their contract and refuse to take on additional duties), ‘work-ins’ (occupation of the employer’s premises, to prevent a proposed workplace closure), and the banning of overtime or call-outs.

There is a distinction to be drawn between official action, which is properly authorised and endorsed by a union, and unofficial action, where employees take matters into their own hands.

There are complex rules relating to balloting and notification requirements which unions must comply with for official industrial action to have legal protection.

Employees participating in official industrial action, which has been properly balloted and notified to the employer, are protected from dismissal for at least the first 12 weeks of the action, known as the ‘protected period’ and possibly longer, although the position is more complex after that and requires fact specific analysis.

Strike action is often accompanied by picketing where workers line up outside the site or workplace to seek support for their cause and try and dissuade others from working.  Picketing can create an uncomfortable environment for non-striking employees and third-party contractors who need to enter the site to make deliveries.

Peaceful picketing is permitted by law, however it can escalate, into unlawful conduct such as blocking site entrances and engaging in unacceptable behaviours towards people crossing the picket line.

How Walker Morris can help

  1. Dialogue with unions – if your business is planning changes or conducting pay reviews, recognition agreements should be reviewed and complied with (some of which may be quite historic documents). The status of the union (for example, whether it is recognised and whether that recognition is statutory or voluntary) should be considered, along with any collective agreement. We can advise on the correct procedure to be followed and assist in ensuring negotiations with the union are conducted in a productive manner and fully exhausted, in order avoid disruptive industrial action.
  1. Determining whether the action is official and protected – even with the best will in the world, it may not be possible to avoid industrial action altogether. We can assist you in distinguishing between official and unofficial action and determining whether balloting and notification procedures have been complied with. Where action is unlawful, we can help you consider the options available, including obtaining court orders to prevent an unlawful strike and considering whether disciplinary action against participating employees, including possible dismissal, is appropriate. Where a strike is lawful, but continues beyond the 12-week ‘protected period’, we can support you with the process of assessing whether dismissal of employees for continued action may be fair.
  1. Running your business during industrial action – as part of contingency planning, the business may need to re-deploy non-striking employees from other parts of the business based in other locations to cover the work of striking employees and/or use casual/agency staff. However, there are strict legal rules which must be complied with and it is a criminal offence for agency workers to be supplied to undertake the duties normally performed by a worker who is on strike or taking part in industrial action. Where non-striking workers are to be redeployed, careful consideration should be given to health and safety obligations and training. We can support you in preparing a plan to keep the business operating and in the plan is legally compliant. 
  1. Conduct during the action – while peaceful picketing is permitted, we have seen instances where picketing has crossed the threshold of acceptable behaviour. We can advise you on urgent legal action which may be taken when faced with unlawful picketing, including engaging with the unions, taking court action and dealing with individual cases where a picketing employee’s action constitutes misconduct.
  1. Urgent injunctions – we have a team of highly experienced disputes lawyers who are experts in advising clients through complex and urgent High Court action which may be required in connection with managing and mitigating the commercial risks arising out of industrial actions. This can extend to anti-strike injunctions to prevent unlawful strikes and other injunctions designed to limit the number of picketers and confine their activities to peaceful protesting as well as to create exclusion zones which picketers cannot enter which allow trucks to access manufacturing sites unimpeded.

Nick
Lees

Partner

Dispute Resolution

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Nick
McQueen

Partner

Dispute Resolution

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Andrew
Rayment

Partner

Employment

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Charlotte
Smith

Director

Employment & Sport

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+44 (0)113 399 1891

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