Employees who are frustrated by their lack of influence over redundancy decisions during the recession are increasingly prepared to stage a sit-in. The aim of a sit-in is usually to avoid redundancies or, at least, to negotiate enhanced redundancy payments.
Employers who have had to deal with such tactics this year include an Irish branch of Thomas Cook, Dundee-based Prisme Packing, Enfield-based Visteon, and Isle of Wight-based Vestas. So, what can an employer do if faced with this situation.
Q Can employees lawfully occupy employers’ premises?
A There is no express right to take occupation of employers’ premises as part of industrial action. Employees can, however, be protected from dismissal in certain circumstances.
Q Should an employer try to end the sit-in without recourse to legal remedies?
A Realistically, legal action may need to be contemplated to remove them. Nevertheless, employees should be given an opportunity to freely vacate the premises. Mediation could be an option. There can be PR and publicity advantages for employers being seen to have explored resolution first; an acknowledgement that a point has been made, but the wider interests of the business may be better served by an agreed end to the protest. If a period of grace is given, it should be made clear that this does not imply consent or acquiescence to the sit-in. The right to seek legal remedies should be preserved.
Q Can employees engaging in a sit-in be dismissed?
A As sit-ins fall within the legal definition of industrial action, the law of unfair dismissal is subject to special rules. If the employees are participating in protected industrial action, then dismissal is always likely to be automatically unfair (regardless of whether the industrial action is official or unofficial). Briefly, industrial action is protected if there is a trade dispute and the industrial action has the backing of a secret postal ballot.
If the industrial action is unprotected, then whether employees are protected from dismissal will depend on whether the industrial action is official or unofficial. A sit-in will only amount to official industrial action if it has union endorsement.
If employees are participating in unofficial industrial action, employers are protected from an unfair dismissal claim. If employees are participating in official industrial action, the employer can still be protected from an unfair dismissal claim, but only if it is not selective when dismissing.
Q Can staging a sit-in affect redundancy payments?
A Participating in industrial action once notice of dismissal has been served can jeopardise the entitlement to a statutory redundancy payment. Employees should be made aware of this. Any offer of an enhanced redundancy payment should be made on the basis that continued industrial action will render the enhancement not payable.
Q What if the employees do not vacate the premises?
A Trying to take steps to forcibly remove employees or former employees is risky – both legally and potentially from a PR perspective and could amount to assault.
Employers may be inclined to call the police. However, unless a crime was taking or was likely to take place, such as aggravated trespass, breach of the peace or vandalism, the most obvious legal remedy would be a civil property action. For example, in the Vestas case, employees only vacated the premises when a possession order was granted by the civil courts and bailiffs then took back possession of the office.
Q Do employers remain under an obligation to ensure employees’ safety during a sit-in?
A During a sit-in, employees will be occupying premises that are not designed for domestic uses. This could give rise to risks that have not previously been assessed by the employer.
Although the employer’s duty of care will continue during a sit-in, such duties of care extend to reasonably foreseeable risks. Therefore, employees should be made aware that if they choose to use the premises for purposes for which they were not designed, they do so at their own risk. The employer may also wish to check its relevant insurance policies (such as employer liability insurance and occupier liability insurance) to determine whether adequate cover is provided, and to ensure it complies with the terms of its policies during a sit-in.
Q What if damage is threatened to the premises?
A The union should be encouraged to withdraw any endorsement of the industrial action to render it unofficial. Employees should be warned that the employer will seek to recover costs of putting right any damage. The union may also be liable in certain circumstances.
Gemma Herbertson, associate, employment, Dundas & Wilson