Industrial action: some FAQs for employers

Over the summer National Rail and London Underground employees took part in the largest strike action in over 30 years. Union leaders have recently warned of a wave of strikes by civil servants and public sector workers this winter. Against this background, it is important for employers to be aware of what to do in response to threatened industrial action. We consider some FAQs below.

Is it only union members who can take part in industrial action?

Although only union members can vote in a ballot for industrial action, all employees covered by the ballot can take part. Any protection against dismissal will apply to both union members and non-union members.

How should we deduct pay for employees on strike?

You do not need to pay employees for the period during which they are taking part in a strike.

You can simply deduct pay for the hours lost for hourly paid employees. For weekly paid and salaried employees, firstly check whether the contract sets out how to calculate a day's pay. If the contract is silent then the deduction rate will usually be based on working days (1/260 x annual salary for someone working 5 days a week), unless the employee is on a permanent contract and routinely has to work outside of their contracted hours to fulfil their duties (e.g., teachers) in which case it should be based on calendar days (1/365 x annual salary).

How much support is needed for industrial action to be lawful?

• At least 50% of all union members entitled to vote in the ballot must do so; and
• At least 50% of members who responded to the ballot must vote in favour of action.

So, if 100 members are balloted, at least 50 must vote. If 50 vote, at least 26 must vote yes for there to be a valid mandate. If all 100 vote, 51 would need to vote in favour.

If the majority of those entitled to vote in the ballot are 'normally engaged' in the provision of 'important public services' (including health, fire, transport, education, border security), at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold and the requirement for a simple majority).

What happens if the union doesn’t comply with the balloting and notice requirements?

If the union fails to comply with the balloting and notice requirements, it won't have immunity against claims and you may be able to apply for an interdict to stop the industrial action (injunction in England and Wales) and/or claim damages. The level of damages is subject to a cap (which increased from 21 July 2022) which depends on the size of the union membership. 

Certain minor accidental breaches are, however, disregarded. The union might also have a defence if the information provided is 'as accurate as reasonably practicable in light of the information the union holds'.

Can we use agency workers to keep the business running?

During a strike or other industrial action your options for getting the work done include:

• Using existing employees or workers from other parts of the business who are not taking part in the action, if permitted in terms of their contracts.
• Engaging new temporary workers directly.
• Temporarily outsourcing affected business functions to a third-party contractor.
• Using agency workers. Previously, it was a criminal offence to allow agency workers to cover workers participating in a strike or other industrial action. Since 21 July 2022, there are no restrictions on employment agencies supplying agency workers.

It is important to ensure that any replacement workers have the necessary skills, qualifications, and training required to carry out the job. Also, think about your health and safety obligations, particularly when operating with a skeleton staff.

More information

On 20 October 2022 the UK government published a Bill, expected to come into force in 2023, introducing minimum service levels during transport strikes. It remains to be seen whether any of the other pledges made to reform industrial action rules - such as introducing a cooling off period - will proceed.

If you would like more detail on anything in this blog, please contact a member of our Employment and Immigration team.

Workbox by Brodies users can find information at the pages on Industrial Action including guidance on responding to industrial action and a checklist on the balloting and notice requirements. To find out more about Workbox, or to arrange a free online demo, please get in touch with the Workbox team.