Industrial action: key points for employers
31 January 2023
The wave of industrial action across key public services shows no sign of abating in 2023. Teachers are the latest profession to have voted in favour of striking, with the first strike in England and Wales due to take place on 1 February 2023 following a successful ballot by the National Education Union (NEU). Further strikes are set to take place in February and March, affecting schools and universities, rail and bus services, ambulances, nurses and other medical staff.
In this article, we look at the key requirements that must be met before employees can take part in lawful industrial action, together with some other relevant factors that employers should be aware of.
Unions are required to follow strict statutory procedures for conducting a lawful ballot of their members before taking industrial action.
This includes providing notice to the employer of the proposed ballot at least seven days in advance, with a list of the categories of employee being balloted and their workplaces. Employers must also be provided with a sample voting paper at least three days before the ballot.
There are minimum thresholds that apply to ballots for industrial action. All industrial action ballots must have a minimum 50% turnout of those entitled to vote, with a majority voting in favour.
For ‘important public services’ there is an additional minimum 40% threshold of total eligible voters voting in favour of strike action. This requirement applies to:
- health services;
- fire services;
- transport services;
- education (under 17);
- nuclear decommissioning; and
- border security.
Unions must notify the employer of the ballot results, and must give a minimum of 14 days’ (or seven days by agreement) notice of intended industrial action. Industrial action can take place up to six months after the ballot. Employees are not required to tell their employers whether they intend to take strike action, but employers can ask staff if they are planning to strike.
Striking staff members and trade union officials who represent them are entitled to picket at or near their place of work, for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
Under the Code of Practice on Picketing, the number of pickets at any entrance to or exit from the workplace should not exceed six. The trade union must appoint a picket supervisor, whose role is to oversee matters and liaise as necessary with the employer or local police.
Employees are not entitled to be paid for any period during which they are on strike, and will not be entitled to bring a claim for unlawful deduction of wages. The amount of pay deducted should be calculated in a fair and proportionate way, and in accordance with any contractual provisions for calculating a day’s pay.
What protections do striking workers have?
If the ballot has been carried out properly in accordance with the statutory requirements, and the vote is in favour of industrial action, those taking part in industrial action will be automatically protected from being dismissed if the reason (or principal reason) for the dismissal is that the employee took protected industrial action. There is no requirement for any minimum period of employment.
Note that this protection applies to those taking part in the strike, even if they are not themselves union members, provided that they are striking alongside members of a trade union that has authorised or endorsed the industrial action (meaning that it is ‘official’ industrial action), and the action is being taken in contemplation or furtherance of a trade union dispute following a properly organised ballot (‘protected’ industrial action). It is not necessary for the employer to officially recognise the trade union for collective bargaining purposes.
Different rules apply depending on whether the dismissal is due to taking part in official (but not protected) industrial action, or due to taking part in unofficial action. The timing of the dismissal is also relevant, and advice should be sought before considering the dismissal of an employee during or after industrial action.
Wider impact of strikes on staff attendance
Since dates of official industrial action are always known in advance, employees should have enough time to make alternative arrangements if public transport is affected, or to arrange childcare if schools have to close. However, some employees may have genuine difficulty attending work due to the impact of strikes.
If this is the case, employers should be flexible in allowing staff to work from home where possible, or perhaps making up their hours on other days. Otherwise, employees should be given the option of taking the time off as holiday or as unpaid leave.
Reducing the impact?
The Government has already acted in an attempt to reduce the impact of industrial action on employers, with a change in legislation taking effect from 21 July 2022 meaning that agency workers can now be lawfully engaged to cover work normally done by employees who are on strike (see our July 2022 news briefing). A number of trade unions have applied for a judicial review of this change in legislation, with a hearing due to take place in March 2023.
In addition, the Government’s Strikes (Minimum Service Levels) Bill is currently working its way through Parliament. If enacted, this will introduce new powers for the Government to set minimum levels of service during strikes for a range of public services. It will also remove the right to claim automatic unfair dismissal if an individual is required to work during a strike in order to meet the minimum service level requirement.
There is basic guidance for employers on industrial action available on GOV.UK. More detailed guidance on industrial action and the law is also available, although note that this has not been updated to reflect the changes to balloting threshold requirements (outlined above) that applied from 1 March 2017.
Guidance for trade unions and employers on balloting for industrial action is set out in the statutory Code of Practice on industrial action ballots and notice to employers. This Code explains the rules relating to balloting and providing a statutory ballot notice to employers, as well as the minimum ballot thresholds that must be met for industrial action to be lawfully held.
The Government has recently published new guidance for school leaders, governing bodies and employers on handling strike action in schools. It provides advice on keeping schools open on strike days and outlines the law on trade disputes and industrial action.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2023.