With regular reports of strike action or proposed industrial action hitting the headlines, how can employers prepare for the threat of a proposed action? Camilla Beamish considers some ways HR teams can minimise the impact.
Strikes at supermarket chain Tesco may have been called off at many of its warehouses this week as members vote on an improved pay offer, but the threat of industrial action still looms large.
The company has said that it is “disappointed” by the votes of its staff for strike action, but has also made it clear that it has contingency plans in place to help mitigate the impact.
Like Tesco, when faced with the threat of official industrial action and a striking workforce, employers need to ensure that any contingency plans that they put in place don’t leave themselves open to potential legal claims.
So what can HR teams do to minimise the impact of strike action while staying on the right side of the law?
Once an employer has satisfied itself that any proposed industrial action is lawful, it should carry out a risk assessment to determine the steps that need to be put in place to ensure working conditions will be safe while employees are on strike.
An employer can encourage staff who are being called on to strike to attend work instead, but considerable care should be exercised when doing so.
There is a fine line between encouragement and “undue pressure”, which could then lead to claims that an employer has subjected employees to unlawful detriment on the grounds of their trade union activities.
Offering additional financial incentives to those employees who do attend work during a period of strike is also risky for several reasons.
Firstly, it may encourage more votes for future strike action if it appears to staff that their employer is willing to pay them not to go on strike.
Secondly, employers need to be mindful of the provisions of the blacklisting regulations that make it unlawful for employers to keep any list of employees who took part in industrial action.
Can we hire temporary staff?
If employers are unable to persuade sufficient numbers of employees not to strike, then ideally it will be able to move current non-striking employees so they can cover the work of those on strike.
However, this would be subject to either an employer having the contractual right to vary the employee’s role in such a way or the employer having obtained the employee’s specific consent to the move. For example, one commonly adopted approach is to require the management team and/or other senior staff to temporarily work on the shop-floor in an “all hands on deck” approach.
Another option would be for a business to recruit temporary staff to cover for striking employees.
Keeping accurate records is essential because industrial action can affect employees’ statutory rights, such as entitlement to maternity and sick pay.
However, businesses may struggle to recruit staff for this purpose via an employment agency. This is because it is a criminal offence for an employment agency to knowingly supply an employer with temporary workers to perform the duties normally performed by a worker who is on strike or the duties normally performed by another worker who has been assigned to cover the striking worker.
Despite this, there is nothing to prevent businesses using employment agencies to find employees that the business can employ directly on a short-term basis while industrial action takes place.
Equally, agency workers can be used once a strike is over to clear any backlog of work. An alternative approach would be to temporarily outsource affected business functions to a third-party contractor.
How should we communicate?
HR teams also need to communicate with payroll, so that they know which employees’ pay should be withheld during the strike.
Keeping accurate records is essential because industrial action can affect employees’ statutory rights, such as entitlement to maternity and sick pay. In doing so, it is important that data protection rules are complied with.
These rules give special protection to union membership and HR teams should again avoid producing any list that may amount to a “prohibited list” for the purposes of the blacklisting regulations.
Periods of industrial action can inevitably lead to considerable tension within the workforce.
Therefore when a period of industrial action is anticipated, it can be a good time for employers to formally remind employees that a zero tolerance approach will be taken to any conduct such as bullying, harassment or intimidation and that such matters will be dealt with in accordance with their normal disciplinary procedure.
Whatever temporary measures a business takes when faced with industrial action, it should be mindful of the fact that such action may serve to further inflame the situation with its striking workforce.
While a business might put considerable effort into coming up with the most watertight of contingency plans it should ensure that such effort is replicated when it comes to negotiating with its striking workforce and seeking a resolution to the dispute.