Protect your company against unlawful industrial action

Cost-cutting measures can lead to threats of industrial action. Employment specialist Jane Byford explains how the law protects both sides in a dispute

The problem
Increasing competition and budgetary pressures require you to reduce salaries, remove perks and incentives, or change the way that your workforce works. This meets with disfavour by the workforce, and the recognised trade union takes steps towards calling for industrial action, up to and including strike action.

The law Where industrial action will involve an employee breaching their employment contract it will be unlawful. Further, a trade union which encourages employees to breach their employment contracts may be acting unlawfully. Unlawful industrial action can be prevented by a High Court injunction.

However, there is legislation protecting employees who take part in industrial action from dismissal and their trade unions from being sued or injuncted for encouraging them to do so. This protection only applies if the unions abide by strict rules relating to the reasons for, and the method of, calling the industrial action. These rules are largely contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Expert advice The key to employees and the unions gaining protection for taking part in industrial action is that the action must be taken "in contemplation or furtherance of a trade dispute"; not be for certain prohibited reasons; and have the support of a properly organised ballot and comply with strict notification requirements.

It is rare for industrial action to be held to be unlawful due to one of the first two requirements (a "trade dispute", for example, is defined extremely widely and can encompass a disagreement about almost anything the employer asks of its employees).

Where industrial action is most susceptible to challenge is the way in which it is called by the union, which can often be in breach of the prescriptive rules set out in TULRCA. These rules relate to such things as which employees are entitled to vote; the notices that must be sent to voters; the time frames for sending notices; the way the union calls and conducts the ballot; and the time frame for taking the industrial action following the ballot.

Where it suspects the industrial action is unlawful an employer can apply to the High Court for an injunction preventing the action from taking place. This is an attractive option where, were the action to go ahead, it would prove very costly to the employer.

Check list In considering workplace disputes, dealing with the threat of industrial action and handling the employees, employers should consider:

• Very often employees cite poor communication as the cause of industrial action. Therefore, as far as possible, employers should consult with employees and their union about any changes to terms and conditions or ways of working as soon and as thoroughly as possible. Prevention is always better than cure.
• Will the industrial action proposed by the employees amount to a breach of contract? This will almost certainly be the case where a strike is proposed but may not be so in other cases, such as a "work to rule".
• Where the action proposed would amount to a breach of contract then the employer might be able to take action against both the employees and the union where the strict rules of TULRCA are not followed.
• Seeking legal advice about whether there is a genuine trade dispute; whether the industrial action is being taken on some prohibited ground; or whether the action is likely to be unlawful for failing to comply with the strict balloting and notification requirements.
• Where proposed industrial action looks to be unlawful invite the trade union to repudiate the action and consider whether to take, or at least threaten, injunctive proceedings.
• Remind the workforce that it will have no protection from dismissal if it takes part in unlawful industrial action.

Beware! While an employer can apply to the High Court for an injunction preventing unlawful industrial action, without confirmation from the court that the action is unlawful, the employer should tread carefully in determining how to treat employees who take part in it.

Employees have the benefit of certain protections in law when participating in trade union activities or taking part in protected industrial action, including protection from dismissal, and any improper action by the employer could result in tribunal claims.

Contact Jane Byford is a partner and head of employment at SGH Martineau
jane.byford@sghmartineau.com