Minimising the risks of strike action

After the recent widespread public sector strikes, and with the potential of more industrial action still looming, private sector employers would be well advised to consider whether or not they have the right contingency plans in place to effectively manage the impact of a strike.

After all, public sector strike action could well have a knock-on effect right along the supply chain – and of course the private sector is not itself immune to the possibility of walk-outs. However, there are a number of measures that an employer can take which will not only help to make the prospect of strike action highly unappealing to employees, but also strengthen ongoing workplace and union relationships in the process.

Communication is key

There are certain key messages that, as an employer, you can convey in order to encourage employees to understand why a proposed strike may not be their best course of action and also to undermine the perception that industrial action is an effective way to disrupt business.

Consider ways to do the following:

  • Emphasise the bigger picture by outlining how all employees benefit (through their future pay and employment prospects) from the success and good reputation of the business.
  • Build confidence in management by conveying a consistent message and explain fully the necessity of any changes for the future competitiveness of the business.
  • Explain that damage to the reputation of the business can put both the business and the livelihoods of the employees at risk. Richard Branson’s recent communication to Virgin Atlantic employees is a good example of this approach.
  • Voter apathy among those opposed to a strike could lead to a “yes” vote by default, so encourage those opposed to the action to make their voices heard at the ballot box. Highlight that striking employees will suffer an impact on their pay or pension contributions and emphasise how effective contingency planning means that industrial action is not an effective tool to extract concessions.

This last point is a crucial one, as preparing an appropriate contingency plan can allow you to minimise the impact of strike action on staff, customers and suppliers if the worst does happen. It can also outline how you intend to keep the business operating as normally as possible and how a reduced service can be offered without long-term damage to the business.

Maintaining “business as usual”

There are a number of practical ways within the current legislative framework to make sure that your business operates as normally as possible until striking employees return to work. However, employers will need to take care when developing their contingency plans due to certain restrictions which exist, such as the recruitment of temporary labour to cover striking employees. There are a number of practical options which can enable your business to operate as normally as possible:

1 Engage workers directly on fixed-term contracts

While drafting in temporary staff under a normal agency arrangement to do the work of striking employees is unlawful, there is nothing to stop you engaging individuals directly as employees (as Royal Mail did in 2009). Usually, the advantage of temporary workers is that they are not employed directly by the business (with all the attendant rights of employees) but directly hiring temps on fixed-term contracts can be an effective way to ease the strain on the business during the strike period. The business can still approach recruitment agents to supply such workers but the arrangement would need to be set up so that the agency take an introducer’s fee, rather than a percentage of the individual’s pay.

If you already use agency workers, then there is nothing to prevent you from continuing to use them for the work they were hired to do (or indeed to replace them if they leave during the strike) provided such temps are not allocated to duties normally performed by a striking worker.

2 Engage the services of a contractor

Consider engaging a contractor to provide assistance during periods of industrial action through a contract for the supply of services rather than a supply of personnel. This would normally mean that responsibility for a particular function is delegated to the contractor, resulting in an element of loss of operational control. This option will not always be available and – given the scope for challenge to such a scheme – the contract would need to be very carefully worded and advice should be sought. In 2010, the London Fire Authority showed how effective temporary cover of fire prevention services provided by a private firm could be in coping with strikes and bolstering their position in a protracted dispute over shift patterns.

3 Draft in employees from other parts of the business

Consider internal secondment of employees from non-business critical areas to back-fill striking employees. This re-deployment method has been successfully used by train operators such as London Midland, which has trained managers to temporarily fulfil the duties of drivers and conductors during strikes. However, ensure that the re-deployed employee’s contract allows this. For example, if they are usually based in other geographical locations, ensure that there is a mobility clause in their contract. It is also important to ensure that agency workers are not used to cover the work of those employees that are re-deployed.

Whatever route you decide to adopt, it is important to consider the long-term effect it may have on industrial relations and the trust that exists between the business, employees and the unions. Further, participating employees enjoy extensive legal protection during strike action so careful planning is critical to identify and mitigate risk.

Employers would, therefore, be well advised to seek advice as part of their own contingency planning. For example, if ballots for industrial action are successful then there may be scope to challenge the validity of the strike action on a legal basis.

Ultimately, by working closely with professional advisers and ensuring contingency plans are well thought-out and effectively communicated, employers will have the best possible chance of averting a damaging walk-out and ensuring a supportive and flexible workforce in the longer term.

Chris Seaton, employment partner, and David Rintoul, Burges Salmon LLP

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