David Bradley, global head of HR legal services, DLA Piper
This year’s TUC conference again called for legislation to legitimise ‘supportive’ strike action – otherwise known as secondary action – which is currently unlawful.
Here are some of the key issues underlying the TUC’s call.
In respect of what can trade unions currently call for lawful strike action?
Lawful strikes must be based on a ‘genuine trade dispute’ between employees and their employer (not somebody else’s employer).
The definition of trade dispute can be wide, usually relating to issues such as pay, terms and conditions, redundancies or trade union issues.
What is not allowed is action based on political issues or the actions of another employer.
Difficulties can arise, for example, in the public sector around the issue of outsourcing. The distinction between union action motivated by the general opposition to outsourcing or outsourcing to a particular provider (which would be unlawful), and action motivated by the impact of a particular situation on union members’ terms and conditions (which would be lawful), is often difficult to see.
It would help if the laws around the balloting process for strike action required unions to state precisely why they were calling for strike action.
What is the difference between lawful and unlawful strike action, and why is it important?
Lawful action is based on a genuine trade dispute and supported by a particular process of notifications (of intended ballot, who is to be balloted and then action) to the employer, and a secret ballot of members. There are particular timeframes allowed for each stage and the mandate for strike action (provided by a ‘yes’ ballot) is then time limited (four weeks from the date of the ballot result).
Once supported by a ballot, the union can call on members and non-members to participate in action. Any breach of the process, if it is material, can lead to the employer taking action to prevent the union from endorsing any subsequent strike action. Legal action is usually by way of injunction, but there is also a potential claim for damages.
It is crucial for trade unions not to fall foul of the law. Two former shop stewards dismissed by British Airways (BA) after last summer’s Gate Gourmet dispute will share a £500,000 payout from the Transport and General Workers’ union, according to Guardian reports last week. If normal legal principles applied in respect of strike action, employers could sue staff for losses suffered, dismiss staff summarily for fundamental breaches of contract, and sue the union for inducing them to act in breach of contract. It is the existence of specific legislation that protects employees and unions from employer action, and the legislation is centred on the concept of union endorsement for strike action based on the successful operation of the balloting and notification process.
If the processes are not properly followed, the union can be left in a difficult position. If it continues to endorse action, it can be exposed to legal action and a claim for damages (limited to £250,000). If it does not endorse action, staff are exposed to the risk of summary dismissal.
Which employees can lawfully be called to participate in strike action?
Broadly, the employees of the employer to whom the dispute relates (whether or not they are a member of the union).
The most recent significant example where employees ignored this distinction involved BA and Gate Gourmet. The dispute related to Gate Gourmet. BA unions had to formally denounce the action (although there was some doubt that their words were aligned with their actions) leaving BA staff ‘unprotected’.
This is the issue at the heart of the TUC motion to legalise ‘secondary’ or ‘supportive’ action. If the law was what the unions want it to be, BA employees would have received the same legal protection as striking Gate Gourmet staff. The logical consequence of the law moving in this direction would be to greatly enhance the union’s opposition to outsourcing generally, and assist in a move towards sector-wide pay bargaining.
What are employers’ and employees’ key rights during strike action?
For employers, while there is a breach of contract by the employee, staff have immunity from court action and dismissal if the processes have been correctly followed, as explained above. In practice, the contract of employment is suspended and benefits do not accrue. This will mean pay will not be earned for strike days (there are potentially wider arguments here), and could also mean all other benefits are suspended, such as bonus arrangements and pension contributions.
Employees are protected from dismissal (providing the strike is lawful) for a period of at least 12 weeks. They have the right to work if they wish, and any persuasion not to by union members or representatives needs to be reasonable and must not amount to intimidation.
For more advice on how to deal with strikes, from the former HR director of Gate Gourmet, see the October issue of Employers’ Law magazine