Strike injunctions will become more common following BA and Network Rail court orders, experts say

This summer employers are braced for a big increase in industrial action as they try to maintain low pay settlements, curb bumper pension payouts and restructure their businesses in the wake of the recession.

Strikes are already on the cards for high-profile employers including the Civil Service, Hewlett Packard, the AA and of course, Network Rail, whose planned industrial action straight after the Easter bank holiday was called off at the last minute after the High Court granted an injunction.

It is not the first time employers have used injunctions to cancel strikes – British Airways (BA) being another high-profile example, as its planned Christmas strike was deemed illegal – and it certainly won’t be the last, according to employment experts.

Ballot rules: checklist for employers

If you suspect a union has made a mistake act quickly; failure to do so may influence a court against granting an injunction to prevent strikes Consider capturing seminars on video for staff that can’t make it. Promote the campaign Ð you could use payslip messages, team briefings, posters or e-mails. Obtain evidence from employees who have not been balloted or former employees who should not have been balloted. Collect feedback. Analyse the union’s stated position about the dispute in the press to check if it diverges from the formal correspondence regarding the dispute. Source: Xpert HR

Kevin Green, a former HR director at Royal Mail when the company secured one of the first injunctions against a strike ballot in 2007, said the recent BA and Network Rail court orders “will make more employers look at injunctions”, adding this was an effective way of “holding unions to account”.

In an interview with Personnel Today, he said: “Any employer faced with damaging industrial action should consider an injunction if they can produce evidence that the ballot conducted by a trade union was not correct.”

Official figures show that last year 451,000 working days were lost as a result of 100 strikes.

Green added: “When you are faced with disproportionate action you have to use everything in your armoury to maintain services to the customer.”

Royal Mail’s injunction against two days of postal strikes in a row about pay and modernisation plans resulted in preventing further walkouts, Green added, as both sides renegotiated successfully.

Mike Emmott, employee relations advisor at the Chartered Institute of Personnel and Development, said: “[The BA and Network Rail orders] will undoubtedly encourage employers to consider applying for injunctions. Provided there is any realistic chance of getting an injunction then I think they will go for it and see.

“But I would be cautious about whether the courts would reach similar conclusions in less high profile cases. Employers shouldn’t expect that they will necessarily get the same response by the judge, as one case doesn’t necessarily affect another. Judges are not bound by those two big cases and they won’t necessarily be influenced by them. The facts will be different.”

Scrutinise ballots

Alex Lock, head of the employee relations unit at law firm Beachcroft, agreed the BA and Network Rail injunctions had “emboldened” employers to scrutinise ballots more closely. The courts were also currently favouring employers in their decisions, he said.

He said: “Employers are obviously cottoning on to this [the court’s favour] and that they are pushing at an open door. They see the courts are more receptive to employers’ arguments so they will scrutinise the actions that trade unions take in terms of balloting and whether they are jumping through all the hoops, in order to get injunctions.”

But Lock warned the favour of the courts was a “pendulum swing” and in another decade or so, decisions could favour employees, as in the 1980s.

How to avoid disputes

Encourage open expression of opinions Listen to what people have to say Have clear dispute procedures for dealing with conflict. Write mediation into your contracts of employment. Consider outside help where necessary, for example using a mediator. Source: Acas

He urged employers to keep talking to unions and staff when conflicts arose to avoid strike ballots, and to bring in mediators such as Acas to help with negotiations.

But Clare Gregory, an employment partner at law firm DLA Piper, said unions would respond to the high-profile injunctions by become “tighter” about how they balloted their members.

She said: “They will cause employers to look more carefully at ballots, but the flip side is they will cause unions to be slightly more careful about the processes they adopt as well.”

Injunctions ‘unfair’

The RMT union, which intends to re-ballot Network Rail signal workers for strike action following a High Court injunction last week, said employers’ reliance on the courts to stop strikes was “outrageous” and “unfair”.

A union spokesman said: “Employers will be champing at the bit now. Employers up and down the country will see the ground has shifted even further in their favour.

“With a law constricted and deliberately weighted in favour of employers it makes it very easy for employers to seek injunctions and kick a perfectly legitimate ballot into touch.”

He added that the ability of employers to rely on court injunctions meant they could disregard negotiations with unions.

“If courts are weighted in employers’ favour they can afford to ignore useful [negotiating] mechanisms in the knowledge that if they end up with a ballot the courts will find in their favour,” he said.