Striking the right balance when it comes to action

Against the backdrop of what many consider to be the most highly-charged TUC Congress in years, widespread strikes by public sector workers seem imminent. We appear to be on the verge of the most fraught period of industrial relations in decades and much of the discontent is focused on one issue – pensions.

The coalition government is seeking to save billions by making changes to how public sector pensions are calculated arguing that, because we are all living longer, the country simply cannot continue to fund a public sector pensions bill that is unsustainable.

The unions claim this is an attack on a key benefit that will significantly reduce the value of employees’ retirement income, which they had a reasonable expectation was guaranteed.

The threat of strike action over pensions is not a problem confined to the public sector. Recent reports suggest that major private sector employers who are planning to impose changes to their pension schemes, such as closing final-salary schemes to current as well as new members, face a similar challenge.

Employers are concerned, understandably, about the potential disruption to their businesses and services that strike action may cause and many are unclear about how best to manage the situation. It is not only the unions who have to contend with the myriad complex regulations and procedural requirements surrounding industrial action.

Strict rules are imposed by the legislation on organising strikes and other industrial action and unions and employees must follow them closely before taking such action. Under these rules, the reason for the strike must relate directly to a trade dispute.

Employees striking to oppose changes to their pension entitlements would pass this test but, for example, striking to oppose government policy on deficit reduction generally would not. This could be a fine line for the unions to tread.

Any industrial action must not breach the rights of others. This could prove to be important in the health sector where employers may try to use the Human Rights Act to prevent strikes that restrict patients’ rights to medical treatment or their right to life. Unions must ballot their members and a simple majority of those who vote must vote yes before a strike can take place. This may not seem a particularly difficult requirement for a union to comply with but the rules on balloting are complex and strict and, as some high-profile challenges have shown, strikes have been blocked where procedures have not been followed to the letter.

Resorting to the courts to foil the unions may raise the temperature and only delay, rather than prevent, strike action. However the history of industrial relations has also shown that such a pause in battle can lead to parties returning to the negotiating table.

The usual protection for employees against deduction from wages does not apply where the reason for the deduction is that a worker is taking part in industrial action. Employees are generally not entitled to be paid while they are on strike. However, this is not the weapon it once was for employers. In recent times unions have used a series of targeted one-day strikes rather than calling on their members to endure lengthy indefinite action.

Employers faced with the threat of industrial action can and will seek to make contingency arrangements to lessen the impact on core business and services. This might involve recruiting temporary staff and redeploying staff to provide cover. It may also involve outsourcing service provision to a contractor. However, an employer is not permitted to use agency workers to cover for employees on strike or staff redeployed to cover for striking colleagues. Also, employers should avoid dismissing employees who are on strike. Employees who are dismissed for participating in lawful industrial action would be able to claim that they had been unfairly dismissed.

l Paul McMahon is a partner in the employment team at law firm Brodies LLP.