Public sector warned against taking legal action over strikes

Public sector employers have been warned to steer clear of court injunctions when faced with strike ballots to prevent a backlash from employees and the general public.

The warning came in the wake of a number of private sector employers turning to the courts to prevent industrial action.

This week, injunctions halted a one-day strike by journalists against newspaper publisher Johnston Press, and temporarily delayed British Airways cabin crew in starting a 20-day walkout, although a successful appeal by the Unite union now means strikes against the airline are expected go ahead next week.

Government to limit the right to strike? The government could be tempted to limit the right to strike if faced with resistance to spending cuts, according to the CIPD’s Mike Emmott. “The stakes are very high, and depending on how the unions and employees affected react, I think there will be a temptation for the government to look at limiting the right to strike where the damage as a result will effect the national economy,” he said. These changes – which could affect key departments such as the Treasury or HMRC – could be made in a deal promising that injunctions based on technicalities or accidental errors will not be “used as a weapon” against unions, Emmott said.

Provisional figures from an exclusive IRS survey show 10% of employers would now consider seeking an injunction if faced with industrial action and, with unions gearing up to fight forthcoming budget cuts, experts predicted some public sector organisations may be tempted to go down this route. But they warned public sector HR to think hard about using the tactic, as the court orders could cost up to £25,000 and public empathy would invariably rest with employees.

Mike Emmott, employee relations adviser at the Chartered Institute of Personnel and Development, told Personnel Today: “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 attitude 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.”

Roger Seifert, professor of industrial relations and HR at Wolverhampton Business School, said areas of the public sector most likely to seek injunctions were those that suffer poor industrial relations – such as the Fire Service and universities – or have strong commercial interests. But he stressed the cost of injunctions would be “hard to justify in the public sector”.

The risk for public sector managers was much greater, Seifert added, as they were more accountable than their private sector counterparts and “there is a lot more public sympathy if you are dealing with nurses than with BA cabin crew”.

Public sector HR should instead focus on negotiated settlements instead, he said. “Injunctions don’t get to the heart of any dispute and lead to worse industrial relations. It’s an expensive, time-consuming and potentially damaging route.”

Lisa Patmore, employment partner at law firm Pinsent Masons, said employers should only use injunctions as “a last resort” after Unite’s successful appeal of a BA injunction highlighted they were not guaranteed to succeed. “Employers shouldn’t automatically assume they will win,” she said. “It’s a discretionary remedy.”