With the recent death of Lady Thatcher news reports have focused on events during her time as Prime Minister, which included significant industrial action.
Today employer/employee disputes rarely result in industrial action and even then it can be short lived, however the threat of a ‘strike’ is one that worries many employers; not only can it cause disruption to your business and damage relationships with your customers, it can have a major impact on workforce morale.
So, what can you do to prevent industrial action taking place and protect yourself should your employees feel they have no option but to cry “everybody out”?
First of all your employees have the right to be a member of a union and must not be discriminated against because they are (or are not) a member of a union. Employers need to recognise this right at every stage of employment and ensure that they do not:
- Discriminate against any applicant for employment on the grounds of union membership (or non-membership) during the recruitment process or during their employment.
- For example, employers must not take any action against employees because they are (or are not) members of a trade union (for example, awarding a pay increase to union members and not to non-members, or vice versa).
- Nor should they take any action against employees to force them to join a trade union or prevent them from joining one or offer inducements to employees to be, or not to be, a member of a trade union or to refrain from taking part in the activities of a trade union.
- Selecting employees for redundancy on the basis of union membership (or non-membership) is also against the law and dismissal on the grounds of union membership (or non-membership) will be automatically unfair.
Understanding these rights can then help you to establish a good relationship with a union that represents your employees. Organisations may enter into a recognition agreement with a trade union on either a voluntary basis or under a statutory procedure.
Voluntary recognition procedure
Many organisations enter into a recognition agreement with a trade union on a voluntary basis. Such agreements will normally involve the union negotiating with the employer over such matters as:
- pay and benefits;
- discipline in relation to union members;
- the allocation of work (demarcation); and
- the right to be informed and consulted.
The advantage of a voluntary agreement is that it will not be possible for another union to use the statutory procedure to force the employer to recognise it in respect of the same group of workers. Also, where the agreement is voluntary, the employer can end the agreement at any time (although this might open the door to an application for statutory recognition from the same or another union).
Statutory recognition procedure
If no agreement, voluntary or otherwise exists, then a union can invoke a statutory procedure to compel the employer to recognise it for the purpose of negotiating pay, hours of work and holidays but can only be used if the employer has 21 or more workers, or an average of at least 21 workers in the 13 weeks ending with that day that the written request is sent. This procedure follows a formal process starting with a written request for recognition from the union to the employer. The employer has ten days in which to respond starting with the day after the employer receives the union’s written request.
At this stage, it is possible for the employer and the union to agree to voluntary recognition and to assist in the discussions, the employer can ask the union to involve Acas, if the union fails to respond or rejects this proposal, it will not be allowed to take its request for recognition any further.
If there is no agreement with the employer, the union may apply to the Central Arbitration Committee (CAC), which has the power to impose a recognition agreement and, if necessary, a method of collective bargaining. The procedure that follows is complex and is managed by the CAC. This advice is outside of the scope of this article, and you are advised to take specialist legal advice on this matter.
Whatever agreement you have with a union, if at a time of negotiating with them about the matters they represent, they may take or threaten to take industrial action to achieve their desired outcome. If embarking on industrial action, trade unions and employees are bound by legal requirements and these include:
- the dispute must be between the workers and their own employer
- the action must not be in support of a closed shop or of an employee who has been dismissed for taking part in unofficial action;
- the dispute must relate to employment issues such pay, the allocation of work, discipline or negotiating arrangements;
- the union must comply with detailed procedures for notifying the employer and balloting the members; and
- picketing must be peaceful and take place at or near the workers' own
place of work.
Once industrial action is underway, an employer is limited in the action that can be taken against the workers involved. Industrial action is regarded as official and lawful if it is properly authorised by the trade union concerned and the trade union has complied with all of the legal requirements. However industrial action can be official (i.e. endorsed by the union) but still be unlawful if the union has not followed the required notification and balloting procedures.
It is also worth noting that an employee who is dismissed for taking part in unofficial industrial action will lose the right to claim unfair dismissal; similarly if the industrial action is official but unlawful, provided that the employer dismisses (and/or offers to re-engage within three months of the dismissal) all those who take part the employee taking part in the industrial action will lose their right to claim unfair dismissal.
If the industrial action is official and lawful it is regarded as "protected". It is automatically unfair to dismiss employees for taking part in protected industrial action, unless the action lasts for more than 12 weeks and the employer has taken reasonable steps to try to resolve the dispute. Such steps may include:
- following the procedure in any collective agreement;
- commencing or resuming negotiations;
- the use of conciliation or mediation services;
- and where conciliation or mediation services are used, ensuring that an appropriate person attends any meetings arranged by the service provider, co-operating in the arrangements for the meetings, fulfilling any commitment to take a particular course of action and answering questions that relate to the matter in hand.
If a trade union announces that industrial action as unofficial, then it ceases to be protected after the working day following the day of announcement and employees continuing to take part in industrial action after this time lose their right to claim unfair dismissal.
An employer who suspects a trade union of tacitly approving unofficial industrial action can demand that the union states the action is unauthorised. If the union does not do this, the action will be classed as official but, as the union will not have followed the required balloting and notification procedures, the action will be unlawful.
Working with unions or staff directly can help iron out any misunderstandings as to what your proposed changes will mean and also help you understand employees’ fears and concerns. While the survival of your business is a priority, your employees should be given a chance to help with that survival, so be prepared to seek external advice and compromise should the need arise.
Julie Sillito is an Employment Lawyer with Riverview Law. Further information about this and other topics can be found by registering for free on the Riverview Law website: www.riverviewlaw.com and you can follow them on Twitter @RiverviewLawSME