Twenty five years after the Miners’ Strike, talk of industrial action is firmly back on the public agenda. This year has seen high profile disputes at British Airways and London Underground, and now the London Firefighters look set to go out on strike too. Perhaps most significantly of all, opposition from public sector unions to the extensive cuts announced last week in the Government’s Comprehensive Spending Review will raise the temperature still higher. Little surprise that many private sector employers are looking nervously over their shoulders and wondering whether we are about to witness a widespread resurgence in industrial action across all areas of the UK economy.

Our briefing focuses on the key legal issues employers will need to bear in mind when responding to a threat of industrial action and considers what practical steps organisations can take if they are affected.

The top ten points to bear in mind are:

  • Industrial action can take various forms, ranging from strikes (i.e. a complete stoppage or cessation of work at the workplace) to other action affecting the proper or ordinary performance of work (i.e. overtime bans, working-to-rule, and go-slows). Action can be official (where it is endorsed by the union), protected (which is official action complying with the statutory balloting and notice requirements and which provides employees and unions with statutory protection) or unofficial (which can never be protected) and will be either continuous (i.e. for an indefinite period) or discontinuous (e.g. a series of one day strikes). Discontinuous action is often attractive to striking workers because, although the strike will still have a very disruptive effect on the employer, the employee himself will be on strike (and therefore forfeiting pay) less regularly.
  • Where industrial action is official and protected, the trade union organising it will have immunity from a tort action for encouraging employees to breach their contracts by going on strike. Employees will usually also enjoy greater protection against dismissal.
  • To be official, industrial action must be in contemplation or furtherance of a trade dispute. While most workplace disputes between employer and trade union will meet this requirement, it is unlawful to take industrial action in support of disputes with third parties (for example, another person’s employer) or for political reasons.
  • This means that sympathy (or secondary) strikes are unlawful.
  • In addition, to be protected industrial action, complicated statutory balloting requirements must have been met and various notifications made within prescribed timescales, before the action is taken.
  • If the requirements have not been met, employers can go to court to invalidate the ballot. Employers will therefore normally want to check the ballot forms and process very carefully to identify if any errors have been made. Small, accidental failings will be disregarded for these purposes. Where necessary, court orders can be obtained very quickly.
  • Peaceful picketing in support of lawful industrial action is permitted at or near to a striking worker’s own workplace. But flying pickets (i.e. pickets attending at a workplace other than their own) are not permitted. Striking workers need to be careful not to commit criminal offences (for example obstructing the public highway) in the course of picketing. In practice, employers will want to notify the police of any picket at their workplace. The police’s role is not to support the employer but they may intervene if there is a breach of the peace.
  • Unofficial “wildcat” industrial action. Unions will normally distance themselves from any such action to avoid liability, and although employees taking “wildcat” action have no protection against dismissal, it will often be impracticable for an employer to dismiss its workforce.
  • Employers will have to consider whether expert third party assistance can help in resolving long-standing disputes. ACAS will often have a key role to play.
  • The key for employers faced with the threat of industrial action is to be ready to move speedily and to plan very carefully. Understanding the law, and how to use it, is a key weapon in any employer’s response to a strike threat.