Public Sector Strike Action – Employers’ Frequently Asked Questions
What options do employers have who are faced with strike action on 30 November 2011?
If the relevant union(s) has a valid ballot in support of strike action, the strike cannot be prevented and contingency planning will be required. If the ballot process is defective (the process is complicated and unions do make mistakes), you could consider obtaining an injunction to prevent the strike.
What happens to employees’ pay if they go on strike?
Staff who decide to go on strike are not entitled to be paid for 30 November 2011. Subject to the terms of the relevant pension scheme, it is also likely that any days of strike action will not count as reckonable service for the purpose of employees’ pensions.
Some of our employees are concerned about having to cross a picket line...
Pickets cannot lawfully block entrances to an employer’s premises nor can they stop others from crossing the picket line. Pickets cannot verbally or physically intimidate workers, suppliers, and visitors, nor can they compel people to listen to them. Picket lines should not consist of more than 6 pickets. Pickets are allowed to form their line near to, but not “on”, your property.
How should we treat employees who refuse to cross a picket line?
Employees who do not attend work because they do not wish to cross a picket line can be treated as if they are on strike and need not be paid.
What are the rules on disciplining employees who participate in strike action?
Where employees partake in official, protected strike action, they are protected from being dismissed. There is no prohibition on taking action short of dismissal (such as imposing a disciplinary warning) but this option should be exercised with great care and may effect your relationship with the union or give rise to possible constructive unfair dismissal claims.
Some unions have not balloted their members on strike action. What happens if members of these unions take part in official strike action organised by other unions?
Members of unions which have not balloted on strike action have no unfair dismissal protection if they participate in official strike action organised by another union.
We have employees who are not in any trade union. Can they go on strike?
Yes, non-unionised employees who are supportive of the strike can participate in official strike action organised by any trade union and will enjoy the same protection against unfair dismissal.
What happens to employees who do not want to strike but who are sick on 30 November 2011?
Employees should be required to self certificate for the sickness absence in the normal way. However, if there is any evidence that, whilst sick, an employee has allied himself to the cause and/ or given support to other strikers in aid of the cause, that employee can be treated as having participated in the strike action.
An employee is due to be on holiday leave on 30 November 2011. Can we cancel the leave to assist with cover during the strike?
Yes, but you would be required to give at least 24 hours notice of cancellation of the day’s leave and allow the employee to take the leave on another occasion.
Can we use agency workers to cover the services normally provided by the striking employees?
It is not permissible to engage agency workers who are employed by the agency and supplied to you. However, it is permissible directly to employ workers sourced by any agency (or by the employer) to cover during the strike.
What is secondary strike action?
Secondary action arises where a union calls upon its members who are employed by Employer A to go on strike in support of employees who are employed by, and in dispute with, Employer B. Employees participating in secondary strike action have not protection from dismissal.
If you have any other queries relating to the upcoming strike action, please contact Tom Wagstaff or Jeanette Wheeler in our Employment Team.
Disclaimer - This document only provides generic guidance and is not intended and should not be treated as a comprehensive guide to the law on industrial action and should not be used as a substitute for legal advice. Birketts LLP shall accept no responsibility or liability for any reliance on this guidance note which deals with law on industrial action in England and Wales as at 24 November 2011.
