Industrial Action: What does this mean for employers?

In recent weeks, we have seen widespread and recurrent examples of industrial action, including most notably, train strikes, waste collecting strikes and postal strikes.

Such action has of course, been taken by workers in these industries to place pressure on their employer to respond to specific employment needs. The cost of living crisis has meant that securing a pay increase has become a much more pressing issue for most, leading to the frequent industrial action we have been experiencing.

With trade unions seeking to coordinate further action in the coming months, there are various things that employers should be aware of.

What is lawful industrial action?

There is a process that must be followed for industrial action to be lawful.

Firstly, industrial action must be authorised and organised by a trade union for the employees taking part in such action to have legal protections against for example, being dismissed.

Trade unions must first provide notice of a ballot to the employer no later than 14 days before the opening day of the ballot and must provide a sample voting paper to the employers 3 days before the opening day of the ballot.

The notice must also contain a statement that the trade union intends to hold a ballot and the date on which it reasonably believes will be the opening day of the ballot.

What can I do about unlawful industrial action?

If a trade union organises industrial action without complying with the above requirements, employers can seek an injunction or damages against the trade union. Injunctions tend to be the preferred option as this will stop the industrial action from taking place and depending on the type of action involved, losses may far exceed the damages cap so it can often be more efficient to seek an injunction.

However, if the injunction is not obtained in time, the employer can seek damages. The maximum amount of damages an employer can be rewarded will depend on the size of the union’s membership.

Can I dismiss the employees taking part in industrial action?

Employers must take care in this area so as not to potentially be exposed to unfair dismissal claims. Employees cannot be fairly dismissed for taking part in protected industrial action (action that has been approved and endorsed by a trade union) for a minimum of 12 weeks after they begin to take part in industrial action, which can be extended depending on the circumstances.

However, employers can lawfully withhold pay from an employee while they are taking part in industrial action.

What can I do to manage the disruption caused by industrial action?

It is important for employers to have a plan in place for periods where workers go on strike, to prevent internal disruption as well as any disruption to the business and with customers/ suppliers.

Some potential things employers can do during industrial action include:

Using employees from other parts of the business to absorb the work of any employees on strike;
Engaging temporary workers or agency workers to replace striking staff during industrial action;
Using an employment agency to find employees for you to employ directly on a short-term basis; or
Temporarily outsourcing certain services to a third-party contractor.
Considering the losses and business interruption that can result from industrial action, employers should consider whether they can adopt a commercial stance. Employers can then make efforts to reach an agreement with trade unions on issues in dispute, before industrial action is commenced.