Introduction
Public sector strikes
Operational impact
Is there an end in sight?


Introduction

With schools closing, trains cancelled and a health service under strain, public sector strikes are impacting on everyone. But how are they affecting the world of work more generally, and what can employers do to mitigate the disruption?

After battling through the challenges of the pandemic, employers may feel well prepared for dealing with the disruption that strikes pose to their business operations and staffing arrangements. Yet the issues, both from an employee relations and a legal perspective, are slightly different. From dealing with a closed school to last-minute travel cancellations, there are various issues to consider.

Public sector strikes

On 1 February 2023, public sector workers across sectors – including teaching, the civil service and further education – took to the picket lines. This was just part of a wave of strikes that appears only to be expanding in scope. As the action impacts on the services that are fundamental to people's day-to-day lives, knock-on effects to people's home and working lives are inevitable.

Transport disruption
Strike action by train drivers on 1 and 3 February 2023 resulted in the significant service disruption that has already been seen in previous months. In the north of England, these strikes compound existing problems caused by a network in meltdown.

With commuter trains inevitably impacted, many workers may struggle to get into the office. In the post-pandemic world, hybrid working provides an obvious and effective solution. But what about those who cannot work from home, or when an employee's attendance in person that day is imperative?

Communication and flexibility are likely to be key here. Employers will need to speak to employees about their expectations around attending the workplace in the face of strikes and discuss alternative options.

Having a written policy that directly addresses the employer's expectations around both expected and unexpected transport delays is helpful. This would encourage consistency of treatment between different teams and help staff to understand what is expected of them. That said, employers should be sensitive to individual needs: significantly extended travel time in the face of strike disruption is likely to be a greater challenge for those with caring responsibilities and rigid commitments outside their normal working day.

School closures
Parents in England and Wales have now joined those in Scotland in experiencing flashbacks to "home schooling" as thousands of schools have closed as a result of teachers' strikes. This time, there is no furlough scheme or work from home mandate, so although the arrangement may feel uncomfortably familiar, the legal position is quite different.

Those with young children or those who cannot work from home may well need to take the day off and the statutory entitlements of parents in this scenario are interesting (for further details, see "Can a person really bring their "whole life" to work?").

Employees have a statutory right to take a reasonable amount of unpaid time off that is necessary "because of the unexpected disruption or termination of arrangements for the care of a dependant". How does this apply in the context of industrial action? Employers should be given at least 14 days' notice of strike action by the unions, begging the question of whether such disruption could be considered "unexpected". But union members do not have to tell their employer whether they will be striking, meaning that the impact on individual schools may not be known in advance and notifications to parents might only be made at the last minute.

This is clearly a grey area, but as statutory time off to care for dependants is unpaid, employees may look to other options in any event. Some employees may prefer to take annual leave and others may benefit from a company policy that offers a number of days' paid leave in this kind of scenario or flexibility in hours to fit around childcare. Again, a clear policy that is applied consistently could be important here and employers should check whether their policy is clear as to whether school closures would be within scope.

Health service strikes
As with trains, health service strikes must be seen in the context of a service that is already under significant strain. Longer waiting lists and treatment delays were perhaps already being felt in the workplace, with some staff awaiting procedures off work or others working below their potential. Now, nursing strikes are also impacting on medical appointments and planned procedures. Employees (whether on sick leave or at work) may experience some non-urgent procedures being cancelled at the last minute. In these circumstances, employers will have to be flexible in accommodating these and also carefully assess whether such employees are fit to work while they await the procedure being rearranged.

Strikes in critical services such as ambulances could present a different challenge to some employers. During previous ambulance strikes, National Health Service (NHS) leaders urged the public to avoid risky activities given the potential delays in receiving emergency care. Clearly, employers should avoid team-building adrenaline activities on strike days. But more seriously, a shortage of ambulances could be something for employers operating in more inherently dangerous industries to factor into health and safety risk assessments. What if an employee is nervous about the higher risk of an accident if commuting compared to if working from home at a time when emergency service cover is threatened?

On this, the pandemic saw a rise in claims relating to avoiding serious and imminent danger in the workplace, provisions in the Employment Rights Act that had previously only rarely been used. All employees have a statutory right not to be subjected to any detriment or to be dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they or others are in "serious and imminent danger". This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action, but in recent years the precise boundaries of the right have been questioned.

Thankfully, a recent Court of Appeal decision, Rodgers v Leeds Laser Cutting Ltd, has clarified their scope: the perceived danger must arise at the workplace and the employee must believe that they are in danger as a result of being at work. Danger "at large" – such as the journey in – would not be covered by these provisions. It also seems unlikely that this high threshold would be met simply by normal work activities being under the shadow of ambulance delays, but this is something employers should be mindful of from a safety perspective generally. Should employees who may be feeling more vulnerable raise health and safety concerns, employers should be prepared to reassure them about the safety protocols they have in place.

In this particular context, it should also be noted that section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992 makes it an offence for someone wilfully and maliciously to break their employment contract knowing or having reasonable cause to believe that the probable consequences of doing so would be for them to endanger human life or cause serious bodily injury. Employers might take comfort from the argument that the current strikes are not leading to "serious and imminent danger" as, if they were, the employer of the strikers could, and almost certainly would, have sought to prevent the strikes from going ahead (as is known to have been contemplated in the NHS before Christmas before being disregarded as an idea).

Home Office and Border Force strikes
Employers and employees might also feel the impact of strikes on immigration services in both the Home Office and the Border Force.

There could be delays on immigration processing when the Home Office strikes. The impact of the 1 February 2023 strike was limited; it mainly resulted in a delay in answering queries on the Home Office's contact centre. However, future strikes could affect general case work, and in particular urgent cases, especially if they run over multiple days.

Border Force officers were on strike again on 1 February 2023 until 7 o'clock in the morning on 2 February 2023, with further action scheduled for 17, 18, 19 and 20 February 2023. The Christmas strike only affected a limited number of ports of entry. The February strikes affected all air and sea entry points, as well as the juxtaposed controls at Calais, Dunkirk and Coquelles. Passengers have been warned to expect delays. However, if the experience to date is repeated, the issue may be more that passengers will not be as robustly screened as usual, due to there only being limited people staffing the entry points who have powers under the Immigration Acts. The strikes planned for later in February affect the ports of Dover, Calais, Coquelles and Dunkirk. The extent of disruption to travellers arising from the future strike days is yet to be known. It is likely to be felt most at the controls in France, because of:

  • the successive days of action;
  • the volume of passengers returning from February half-term break; and
  • the fact that these control points cannot be staffed by the military.

Operational impact

The wider impact of the strike can be seen on businesses across the United Kingdom. The Office for National Statistics reported that one in eight (13%) businesses had been affected by industrial action in October 2022. The biggest impact was seen on wholesale and retail trade, as well as on the hospitality industry. The most common effects were that more than one-quarter (27%) of those businesses were unable to obtain necessary goods for their businesses, and 24% of businesses were unable to operate fully.

In industries already facing staff shortages, reduced trade due to the reduction in footfall of office workers and the cost-of-living crisis mean that the impact of the public sector strike action will come as another blow. Such employers are likely to be looking at reducing business costs, and may first look to the option of redundancies. But this is not always a cheap option and may mean that valuable skills and experience are lost and the morale of retained staff is severely impacted. Employers should also be aware of alternative cost cutting measures that may better suit the needs of their business (for further details, see "Reducing business costs – alternatives to redundancy").

Is there an end in sight?

In response to the current wave of industrial action, the government has introduced the Strikes (Minimum Service Levels) Bill (for further details, see "New bill to mandate minimum service levels during public service strikes"). The Bill has now completed its passage through the House of Commons and is currently awaiting its second reading in the House of Lords on 21 February 2023.

While the detail and scope of such minimum service levels is currently unknown, the Bill would, at least in its current form, enable the government to make regulations to limit trade unions' powers to cause widescale disruption in six key sectors:

  • health services;
  • fire and rescue services;
  • education services;
  • transport services;
  • nuclear decommissioning; and
  • border security.

The immediate impact of the Bill on the current wave of strikes, however, is likely to be minimal. It is likely to take time for the Bill to become law, if it passes at all in its current form despite likely opposition in the House of Lords. Further regulations would then be required, and these will almost certainly be challenged by way of judicial review in light of their potential incompatibility with the European Convention on Human Rights.

The Bill does not, therefore, provide any immediate comfort for businesses trying to manage the broader impact of the strikes. So, unfortunately, it appears that industrial action in the public sector is likely to remain an issue for all employers until such time as the pressures being caused by the cost-of-living crises recede or the government backs down from imposing a real-terms pay cut on the public sector.

For further information on this topic please contact Emily Atkinson, David Hopper, Rebecca Jobling or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.