Employers must act early when strike action looms: Industrial action and what can be done

Jon Heuvel
Left in the sidings: Southern rail trains have ground to a halt following the industrial action by drivers union Aslef (Source: Getty)

Strike action is continuing to cause significant disruption for commuters, business travellers and holidaymakers in early 2017 – but could it have been prevented?

Southern Rail has announced that it is going ahead with three-day stoppages of its train services this month – the first started this week - and British Airways’ cabin crew held a 48-hour strike at Heathrow starting on Wednesday, with a 72-hour walkout planned for 19 January.

Read more: Govia to take union Aslef to Supreme Court over Southern rail strikes

Strike action can cause major disruption to the businesses affected and this can have a lasting impact on their brand reputation. Despite this, there is surprisingly little that can be done to avert official strike action once it is underway.

A history of discontent

Since the strikes of the late 1970s and the notorious "winter of discontent", employment legislation has been gradually watered down by successive governments to lessen the power of trade unions.

Changes in the profile of UK industry, from the erosion of the manufacturing sector and corresponding rise in the service sector, to the disintegration of nationalised industries and the emergence of small businesses, have also contributed to a cultural shift away from mass unionisation.

Read more: We've got cereal strikes going on: Now Weetabix workers vote for walkouts

The Trade Union and Labour Relations (Consolidation) Act 1992 is the principal legislation governing industrial action, and sets out the rules that must be followed by both trade unions and employers. This is a complex area of law for all concerned, and the stakes are high – employees taking part in ‘official’ strike activity which is also ‘protected’ will be deemed to be automatically unfairly dismissed if they are sacked for doing so.

London's Discontent
Refuse was piled in the streets of London during the winter of discontent (Source: Getty)

However, if the strike activity is held to be ‘unofficial’, then the employer is able to dismiss any employee involved.

At the same time, the employer still needs to try and keep its business running; although it can re-deploy non-striking staff from elsewhere to cover the gaps, the legislation prohibits the supply of temporary agency staff to deal with the short-term shortages.

Withhold pay

Employers can take action in other ways. They can withhold pay from an employee who is on strike. They can also demote any employee involved or remove a particular benefit. However, there are legal risks in doing so, not to mention the obvious adverse impact on staff morale.

Read more: Royal Mail pensions closure: £1bn a year is just "not affordable"

If strike action is threatened, employers should be as cooperative as possible, rather than looking to rely on the legislation to protect them. They should conduct their negotiations with union representatives in an open and honest way; engaging in two-way discussion to explore what the problems are and what can be done to address them in a genuine attempt to stave off the threatened industrial action.

Striking British Airways cabin crew carr
BA staff previously went on strike in 2010 (Source: Getty)

When faced with a threat of strike action, business managers can sometimes rise to the bait and see this as an aggressive attempt to coerce them into increasing pay or improving work conditions. In reality, this is rarely the case and employers should always try to find out the root of the problem and be open-minded about finding a solution.

Because the technicalities which determine whether strike action is official or not have become so complex (deliberately so, in the hopes that the complexity will deter all but the most determined unions), handling negotiations with trade unions has become one of the most difficult areas of human resource practice for employers.

Technical error

If either side makes a technical error, this could have serious consequences – such as invalidating any planned strike action, thereby leaving the employees at risk of dismissal if they proceed with the action in any event.

Read more: British Airways cabin crew are staging a fresh 72-hour walkout

To avoid the inevitable disruption caused by industrial action, businesses should aim to take a preventative approach by prioritising employee relations and ensuring that there are effective and open lines of communication with union representatives.

Southern Rail And The Train Drivers Union Meet At ACAS For Talks
Mick Whelan is the general secretary of rail drivers union Aslef (Source: Getty)

Even in situations where the workforce is not unionised, employers should establish two-way communications with the workforce at all levels and make sure that any problems raised are managed properly.

While it might seem that strikes are happening more frequently, they are still a rarity and most employers are unlikely to be affected.

Read more: More Tube strikes? RMT is balloting London Underground staff again

However, with more businesses facing cost increases and greater market competition, it can be tempting to trim payroll expenditure in a way that could undermine workers’ rights and have a negative effect on productivity.

Business owners should seek advice before taking such action and always do what they can to promote a happy and healthy workforce.

City A.M.'s opinion pages are a place for thought-provoking views and debate. These views are not necessarily shared by City A.M.

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