Strike first

The government’s proposed public sector pension reforms are putting a huge strain on employee relations. Alison Weatherhead looks at the challenges for employers faced with industrial action.

The government appears determined to press on with reform of public sector pensions, despite warnings of disruption to services on a level not seen for decades.

The intervention by Danny Alexander, Chief Secretary to the Treasury, seen by some observers as premature and ill timed, has done little to dampen the focus of unions. While there appears to be a degree of political resolve to avoid strike action in the face of a slow economic recovery, this has been counterbalanced with the real concern about the costs to the public purse if pensions are not reformed.

Against this backdrop, Dave Prentis of UNISON has warned that unions are prepared for “sustained and indefinite” strikes, while also offering its support to striking colleagues. He has made it clear that UNISON is taking steps to fight for members’ pension rights. GMB has also warned they may call on members to walk out, if an agreement on pension reform is not reached in the near future.

In the face of looming disruption to public services and the knock-on effect on the UK economy, the Confederation of British Industry (CBI), has called for legal reforms. The proposals would make it harder for unions to strike, with the private sector organisation arguing that in recent ballots there has not been widespread support among union members. At present, all that is currently required is a majority of those who vote to say yes. In some cases, turnout has been as low as 32.4%, which has made this a particular issue among employers and business leaders looking for reform. Under the CBI’s proposals, 40% of all eligible union members would need to vote yes to strike action. From a practical perspective, this would require 100% or more, of those voting to support the action.

As a result, unions have cried foul. Most other ballots in the UK do not require such levels of backing and to introduce higher levels would, therefore, run counter to existing widespread practice. In addition, current statutory balloting requirements are seen by some as particularly complex and draconian.

The CBI has also proposed other modernising measures, which would force unions to keep better records of their members, provide members with information about both sides of the debate and ensure they have a proper understanding of the implications of strike action.

Some employers have taken full advantage of minor breaches of such rules, by challenging strike action. The long-running dispute between British Airways and Unite has gained particular prominence and has only recently come to an end. Earlier this month, 92% of Unite members employed as cabin crew with BA voted to accept the new terms.

In looking to overturn ballot results employers have focused on information used by unions, both relating to the members included in the ballot and the information provided to employers. However, more recently, the pendulum has started to swing back in favour of the unions.

The Court of Appeal made it clear in cases involving the RMT and Serco that compliance with the rules does not need to be perfect. At the same time, courts have been asked not to construe the statutory requirements strictly against unions.

Beyond the immediate challenge of case-by-case intervention by employers to block proposed strike action, the government has signalled it may review current legislation. The speech by Vince Cable, the Business Secretary, to the GMB’s annual conference earlier this month may have shed some light on the issue, where he made it clear “should strikes impose serious damage to our economic and social fabric, the pressure on [the government] to act would ratchet up”.

So what are the legal issues employers need to be aware of when faced with possible industrial action? There is currently no statutory definition for industrial action, with a long-established dictate of the Court of Appeal that 'we'll know it when we see it'. However, as case law has developed, the definition has moved towards any concerted action taken in order to put pressure on an employer. More often than not, this would take the form of a strike or action short of a strike, which would include overtime bans, call out bans, work to rule, work ins or sit ins.

Where a strike goes ahead, employers are often faced with a damage limitation exercise. Usually, striking employees do not get paid but this ‘saving’ may be little comfort in cases where day-to-day operations are severely affected.

Employers do have the option to consider whether any non-contractual benefits can be withdrawn, for example, discretionary bonuses, sick pay or extra time off. Not surprisingly, such measures are likely to be highly emotive, which was clearly visible during the British Airways dispute, where cut-price travel privileges were removed from striking employees.

A key challenge for public sector employers is to safeguard delivery and access to important services. To address such concerns and limit the damage of industrial action, employers have the opportunity to move existing employees from other parts of the organisation to help deliver a service in key areas.

The use of agency workers, either to cover the roles of striking employees or the work of other employees who are drafted in as cover, must be avoided. Such action could see the agency involved being prosecuted under criminal law, with the employer potentially liable for aiding and abetting this offence.

As long as the use of an agency or employment business is avoided, employers are entitled to bring in temporary employees direct. Employers are also permitted to temporarily outsource affected functions to a third-party contractor and agency workers may be brought in to clear any backlog, once the strike is over.

Workers are protected against dismissal during lawful industrial action. Any such action by an employer would probably be automatically unfair, even without the usual one year service requirement.

There are few signs the government’s move to reform public sector pension provision will be finalised any time soon. In the meantime, employers will need to develop strategies to secure the ongoing delivery of critical public services, against the backdrop of considerable uncertainty and disruption to employee relations.

Alison Weatherhead is an associate in the employment team at Maclay Murray & Spens LLP. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..