The use of High Court injunctions to prevent trade unions taking strike action is becoming more commonplace. Kat Baker investigates.
In the past two months, injunctions have halted a one-day strike by journalists at newspaper publisher Johnston Press, temporarily delayed British Airways (BA) cabin crew in starting a 20-day walkout, and prevented action by Network Rail staff.
This recent spate of injunctions is not the first time employers have gone to the High Court in an attempt to stop strikes – and it certainly won't be the last, according to lawyers and employment experts. Provisional figures from an IRS survey, published exclusively by XpertHR, show 10% of employers would now consider seeking an injunction if faced with industrial action.
Kevin Green, a former HR director at Royal Mail when the company secured one of the first injunctions against a strike ballot in 2007, says the recent BA and Network Rail court orders "will make more employers look at injunctions", adding this was an effective way of "holding unions to account".
In an interview with Employers' Law's sister publication Personnel Today, he says: "Any employer faced with damaging industrial action should consider an injunction if they can produce evidence that the ballot conducted by a trade union was not correct. When you are faced with disproportionate action, you have to use everything in your armoury to maintain services to the customer."
Royal Mail's injunction against two days of postal strikes in a row over pay and modernisation plans resulted in preventing further walkouts, Green adds, as both sides renegotiated successfully.
Mike Emmott, employee relations adviser at the Chartered Institute of Personnel and Development, says: "[The BA and Network Rail orders] will undoubtedly encourage employers to consider applying for injunctions. Provided there is any realistic chance of getting an injunction then I think they will go for it and see.
"But I would be cautious about whether the courts would reach similar conclusions in less high-profile cases. Employers shouldn't expect they will get the same response from the judge, as one case doesn't necessarily affect another. Judges are not bound by those two big cases and they won't necessarily be influenced by them. The facts will be different."
Alex Lock, head of the employee relations unit at law firm Beachcroft, agrees that recent successful injunctions have emboldened employers to scrutinise ballots more closely. The courts are also currently favouring employers in their decisions, he says.
Ballot rules: checklist for employers
- Unions must conduct a valid ballot under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA). Employees and unions only have protection if the strike complies with TULCRA.
- Act quickly if you suspect a union has made a mistake; failure to do so may influence a court against granting an injunction to prevent strikes.
- Obtain evidence from employees who have not been balloted or former employees who should not have been balloted.
- Collect feedback from staff.
- Analyse the union's stated position about the dispute in the press to check if it diverges from the formal correspondence regarding the dispute.
"Employers are obviously cottoning on to this [the court's favour] and are pushing at an open door. They see the courts are more receptive to employers' arguments so will scrutinise the actions that trade unions take in terms of balloting and whether they are jumping through all the hoops," he says.
But Lock warns the favour of the courts was a "pendulum swing", and in another decade or so, decisions could favour unions, as in the 1980s. He urges employers to keep talking to unions and staff when conflicts arise to avoid strike ballots, and to bring in mediators such as Acas to help with negotiations.
With the government announcing billions of pounds in spending cuts, unions in the public sector will no doubt be gearing up for industrial action if their members' pay and conditions are adversely affected.
Clare Gregory, employment partner at law firm DLA Piper, says unions will respond to the much-publicised injunctions by becoming "tighter" about how they ballot their members. "They will cause employers to look more carefully at ballots, but the flip side is they will cause unions to be slightly more careful about the processes they adopt as well," she says.
Commentators also warned public sector employers to steer clear of court injunctions when faced with strike ballots, to prevent a backlash from employees and the general public.
Emmott says: "Public sector employers need to be cautious about using the sorts of arguments that have been used by the private sector, because of the impact on public opinion and the attitudes of their employees.
"It would make more sense for the government to try to win the argument than to try to undermine staff and unions exercising what they believe to be their statutory rights. They have to maintain the engagement of their workforce."
From the union perspective, the RMT union labelled employers' reliance on the courts to stop strikes as "outrageous" and "unfair". A spokesman says: "Employers will be champing at the bit now. Employers up and down the country will see the ground has shifted even further in their favour.
"With a law constricted and deliberately weighted in favour of employers, it makes it very easy for firms to seek injunctions and kick a perfectly legitimate ballot into touch."
He adds that if the courts are weighted in their favour, employers could ignore negotiating mechanisms in the knowledge that if there is a strike vote, the courts will side with them.