Industrial Action – What is it and what does it mean for you?

What is industrial action and is it on the rise?

There is no statutory definition of industrial action but as a general guide it is either a strike (a concerted stoppage of work), or action such as an overtime ban or work to rule. Industrial action is commonly used to put pressure on an employer when there is a dispute which has not been solved through direct negotiations, this article focuses on disputes over employee pay.

Trades Union Congress (the “TUC”) issued a report on 23 August 2022 called ‘Raising pay for everyone’. The report sets out a framework for increasing pay to end (in their view) the longest pay squeeze in modern history and a return to normal wage growth. This pay squeeze has been exasperated by the current cost of living crisis, meaning that securing a pay increase has become a much higher priority for most. As a result, the UK has been hit by a wave of industrial action reflecting worker dissatisfaction at pay rises that are failing to keep up with rising inflation.

Major unions are now seeking to co-ordinate strike action this Autumn as they step up demands for better pay. A motion has been submitted to the TUC which calls for future walkouts to be synchronised and a campaign for things such as pay increases at least in line with inflation, a £15 per hour minimum wage and action on all issues which impact on cost of living such as, job security and proper sick pay.

What process must be followed for industrial action to be lawful?

Before a trade union calls for industrial action, it must have the majority support of a properly organised ballot. The trade union must comply with several procedural requirements, including providing you with notice of the ballot.

Section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (the “1992 Act”) deals with providing notice of a ballot. It states that:

1. The trade union must take steps as are reasonably necessary to ensure that no later than 7 days before the opening day of the ballot (this being the first day the ballot paper is sent out to those entitled to vote), they serve notice on you as the employer.
2. No later than 3 days before the opening day of the ballot, the trade union must provide you with a sample voting paper.

The notice served must 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.

The Department for Business, Energy & Industrial Strategy has a Code of Practice on ‘Industrial Action Ballots and Notice to Employers’ which provides practical guidance on the requirements of the 1992 Act. You can find a copy here.

The trade union must then announce the result of the ballot to you and the workers as soon as reasonably practicable, regardless of the outcome. The announcement must contain the number of votes cast, the number of yes and no votes, and the number of spoiled papers, i.e. invalid voting papers (sections 231 and 231A of the 1992 Act).

If following the ballot, the majority of members support a strike or other industrial action, the trade union must then serve notice on you before any such industrial action is taken.

The notice requirements are set out in section 234A of the 1992 Act which states that an employer must be given 7 days’ notice of the commencement of industrial action. However, The Trade Union Act 2016 (the “2016 Act”) amended section 234A of the 1992 Act increasing the minimum period of notice to 14 days. Nevertheless, you may agree to 7 days’ notice.

What can you do if your workers strike?

Depending on your business, absence of workers on strike may not only affect your own work but the work of others. It is therefore important to make contingency plans to enable work to continue in the event of industrial action. However, you must also bear in mind the risk that hiring replacement workers may serve to inflame the existing dispute.

During any strike action, you could:

1. Use existing employees from other parts of the business or existing casual workers.
2. Engage temporary workers directly without using an agency or employment business.
3. Use an employment agency to find employees for you to employ directly on a short-term basis.
4. Use any workers (whether or not they are agency workers) to replace workers who leave or are absent during a strike but who are not participating in the industrial action.
5. Temporarily outsource to a third-party contractor.
6. Use temporary workers, including agency workers, after the industrial action has finished to clear any backlog.

It is important to remember that you would remain bound by your existing health and safety obligations meaning that if you use temporary workers, those workers must have the necessary skills and/or qualifications.

There will be a cost to you if industrial action is taken, no matter whether it is lawful or unlawful. If faced with the threat of industrial action, it may be better for you and your business to take a commercial view and make every effort to reach agreement with the trade union before a ballot on industrial action is taken.

What can you do if the industrial action is unlawful?

The two potential remedies available against a trade union for organising unlawful industrial action are injunctions and damages. The most important is an injunction. Damages are usually claimed against a trade union if an employer did not manage to obtain an injunction in time. Damages are subject to a cap (section 22 of the 1992 Act), which depends on the total size of the union’s membership:

Depending on the type of action involved, losses may far exceed the damages cap. It is for this reason that the primary remedy when threatened with unlawful industrial action, is to apply for an interim injunction to prevent the unlawful industrial action from taking place.

Injunctions are usually obtained against trade unions, although they can also be obtained against an individual, for example if they were involved with unlawful picketing (an activity in which a worker or group of workers protest outside a building to prevent other workers from going inside).

An interim injunction remains in force until a final judgment, unless discharged by the court. In the majority of cases, a full trial will not take place and the interim injunction will effectively end the industrial action. However, if the trade union is able to remedy the defect so the industrial action is lawful, for example by issuing a compliant notice of ballot or industrial action, it will at least have bought you some extra time to consider your options and possibly make contingency plans.

Further support

As an employer, navigating your way through an Industrial Action can seem overwhelming and daunting. If you require any further guidance or support on how to manage your business through any of the issues raised in this article, please get in touch with our Employment team today.

This content is correct at time of publication