Industrial Action guidance

 

 
 INDUSTRIAL ACTION 

Introduction
The Trade Union Act 2016 introduced new restrictions on workers
taking industrial action which has been incorporated into this
revised guidance. Despite these changes Unite has not seen the
anticipated reduction in industrial action.
Unite  members are reluctant to take industrial action. It is always
the last resort, bringing with  it – to some degree, loss of earnings and
job instability. Yet, the number of disputes affecting Unite  members
has been rising over the last few years them leading to
action of some kind. The overwhelming majority of ballots  are  when
there is an attempt by employers to worsen terms and
conditions of employment.
Unite  is committed to collective bargaining and negotiates disputes
in part to protect the union and our members from employers taking
pre-emptive action and imposing changes. Industrial action becomes
a legitimate strategy when negotiations have broken down and where
any agreed disputes procedure has been exhausted – although there
are circumstances when industrial action may be authorised earlier.
Remember, our main objective is to get the best possible deal for our
members and that the branch, the region and the national union work
together.
Industrial action in the United Kingdom is more circumscribed by
legislation than in any other country in the Western world. A raft of
restrictions have been enacted which make it easy to fall foul of the
law and employers are often only too willing to take Unite  to court
where areas of the law are open to interpretation. It has therefore been
necessary to develop fairly rigorous industrial action procedures which
are designed both to make action effective and to protect the union
and its members from legal action proceedings.
INDUSTRIAL ACTION
All industrial action ballots are run  regionally or nationally depending on the nature of the dispute  with input from Unite legal department centrally on behalf of workplace and members affected by the dispute .

It is therefore vital that reps alert the regional officer as soon as
possible wherever there is the possibility of a ballot being needed.This guides is   for reps and members  involved in local action but will also be of help to staff and activists engaged in disputes at all levels. Primarily it focuses on the legal and
procedural requirements when taking industrial action. Workplace reps  and Branches officials where appropriate have important responsibilities, referred to throughout this guide, and which must be carried out to both ensure that industrial action is used
successfully and that neither the union, branch nor individual officers
placed at risk of legal challenge.It is also important not to forget that industrial action can be an important opportunity for the Unite  to recruit new members and to
encourage existing ones to become more active.

Unite`s experience during ballots is that union membership,
and the number of stewards, goes up. In an ideal world there would
be no need take industrial action, but until that day comes we should
make the most of the campaigning and leadership opportunities that
industrial action can sometimes offer.

Trade Union Act 2016 

Please note that in March 2017 new legislation covering ballots
in England Scotland and Wales came into force. Therefore some
deadlines in this handbook will be different depending on whether the
balloting is taking place in Northern Ireland; or in England Scotland and
Wales.

1. The law on industrial action – an overview
This is a brief summary of the law on industrial action. It deals with
basic concepts and what is required for industrial action to be lawful.
It is not a full statement of the law and cannot be relied upon as
a statement of Union  policy. (Any  guidance on Industrial Action should always be sought from Unites Legal team)

Any issue relating  industrial action should be raised with the regional office in the
first instance. The law is constantly changing and you are advised
to consult the regional Officer /Legal officer and;legal department for the latest
adjustments to the rules on industrial action.
The ‘right to strike’
There is no legal right to strike in the UK, but there is limited protection
for individuals from unfair dismissal and the right to associate in the
European Convention on Human Rights. Our so-called ‘right to strike’
really only exists provided that certain conditions are met.
Strikes and other forms of industrial action invariably involve a breach
of contract. Therefore it may be lawful for an employer to dismiss
employees for it and also to refuse pay for a service not provided.
What protection do we have?
Protection is provided under the Trade Union and Labour Relations
(Consolidation) Act 1992 (which is here referred to as ‘the Act’). The
Act gives immunity to trade unions from being sued if the union takes
industrial action ‘in contemplation or furtherance of a trade dispute’.
The wording in quotations is sometimes called ‘the golden formula’.
A trade union is taken to have authorised or endorsed almost any
action – and this includes ‘unofficial action’ (like a walk-out or a wildcat
strike) – unless it formally repudiates it in notices to employers, officials
and each member.
What happens if the  union is taken to court?
When employers take a union to court, they are most often looking
for an injunction to stop the industrial action. However, they are also
entitled to claim damages, which can be considerable. It is possible
for an employer to sue the Union  up to the value of £250,000 for the
damage industrial action has caused them.

If the union does not comply with an injunction it is in contempt
of court and can be fined or have its assets temporarily seized, or its
officers imprisoned.
(In theory, the employer could try to sue individuals for breach of
contract even if their union has statutory immunity, although it is difficult
to see the advantage for the employer.)
How does the union secure immunity?
To be immune from liability, there has to be a ‘trade dispute’
– for example, about terms and conditions, dismissals, the allocation
of work or duties, disciplinary matters, facilities and machinery for
negotiations. The dispute should be real and substantial.
It cannot be a political dispute (eg. when a union is not really at issue
with the employer but is protesting about government policy). It also
does not include ‘secondary action’ (such as sympathy strikes).

The need for a ballot
If a lawful ballot is not held, immunity is lost. This is a very difficult part
of the law for any union to comply with because the rules relating to
balloting are mandatory and are technical and complex. Breaches
of these rules are the most common reason for the courts to grant
industrial action injunctions.
Sometimes difficult decisions have to be made over the conduct of
industrial action when it is realised that the union has failed to comply
with some technical aspect of the balloting rules. Unite continues to
campaign the UK   government to reform these rules.

For a member to be balloted, there must be a dispute between one
or more workers and their common employer. It is not necessary for
every member of the balloting constituency to be directly affected by
the issue in dispute – the balloting constituency is those members who
may be called upon to take part in the industrial action following the
ballot.

A summary of the main rules on balloting:
• the union must ballot all those members it intends to call upon to
take action
• there must be separate ballots for each employer unless certain
conditions are satisfied. In limited circumstances, a ballot across
several employers may be aggregated into one
• the employer must be given at least seven days notice before
the ballot. Notice periods for taking industrial action are seven
in Northern Ireland and 14 in England, Scotland and Wales. The
notice must describe those members being balloted and those
taking action
• the union usually has to appoint an independent scrutineer
• each member being balloted must have voting papers sent to their
home address and all have the right to vote secretly
• the voting papers must contain either a question asking whether
a member is prepared to take part in a strike, or a question asking
whether a member is prepared to take part in action short of a
strike, or both. The two questions cannot be run together as one
• there are rules on informing employers and members of the result.
There are many other technical rules, as well as a Code of Practice, to
comply with.
Once a ballot request has been formally approved in accordance with
the procedures set out in Unite IA and ballots procedure  processes
of a ballot and the issuing of statutory notices to the employer(s).

Commencing the industrial action
Within Northern Ireland the action must commence within 28 days of
the last voting day in the ballot and it may be extended for an extra 28
days with the employer’s agreement. Such an agreement should be
confirmed in writing.
Within England, Scotland and Wales the action must start within six
months of the last voting day in the ballot. It may be extended for an
extra three months with the employer’s agreement. Such an agreement
should be confirmed in writing.
The union has a policy on a number of other important and technical
legal issues, including what to do regarding suspension of action, the
management of discontinuous and continuous action and other issues.
It is crucial to obtain advice on these through your regional Officer.

Picketing
It is lawful to picket, but the law imposes limits. Picketing by members
may only lawfully take place at or near their own place of work. Pickets
are allowed to peacefully persuade workers and others (e.g. suppliers)
not to cross a picket line but anyone who decides to do so must be
allowed to.
Union officials may picket other than at their own place of work where
they are accompanying other lawful pickets. Obviously the criminal law
on public order has to be complied with and directions from the police
should be followed. Mass picketing is unlawful. A government code of
practice says a picket should be six or less: a court is not bound by
this but is likely to heed it.
The trade union loses its immunity (and thus can be sued) if there has
been unlawful picketing.
See Appendix C Guidelines on Picketing.

2. Impact of industrial action
on statutory and contractual employment rights
Loss of pay
An employer is entitled to withhold payment for each day of strike
action from those deemed to be on strike. UNISON argues that this
should be 1/360th of annual salary. Where this is not agreed, the
maximum deduction allowable should be 1/260th of the annual salary.
In the case of Cooper v Isle of Wight College (November 2007), the
High Court determined that the employer had to include days of annual
leave and bank holidays when assessing the working year, rejecting the
employer’s argument that the deduction should be 1/228ths.
Continuous service
Although a strike is technically a breach of the contract of employment,
it does not break continuous service if the worker returns to work after
the strike ends. However, days of strike action will not count towards
any relevant qualifying periods.
Maternity leave and pay
A woman who is due to commence maternity leave on the day of a
strike is advised to seek further advice. A woman who is on maternity
leave while the strike takes place retains her right to maternity pay.
She can also delay her return to work if it coincides with a day of strike
action. (See also “4 Organising industrial action – Exemptions – Special
cases”)
Sick leave and pay
Workers who are absent on sick leave when a stoppage of work starts
retain their right to statutory sick pay during the period of industrial
action. If an employee reports as sick on the day the action starts, the
employer can be expected to make their own judgement as to whether
the employee should be regarded as on sick leave or on strike.
For the purposes of statutory sick pay payable in the eight weeks after
a period of strike action, average earnings figures will reflect the lower
earnings during the period leading up to the illness.
Annual leave
Where strike action begins during a member’s annual leave, the
employer can be expected to treat them as on leave and not on strike.
Some employers however adopt a policy of refusing requests for leave
by workers, covered by a ballot, during a period of industrial action.
Disputes in relation to this should be referred to the region.
Pensions
With most pension schemes, absence for a one day strike will not
count towards pensionable service. The pay lost will reduce the
average pay used in any calculation of benefits. It may be possible to
buy back service lost, but in many instances the amount lost will be
so small it is not worthwhile. It is usually in the last year of service that
pensions are most affected, and for this reason we normally exempt
such members from taking strike action.
Dismissals
The right of an employer to dismiss those taking part in lawful action is
restricted. There is protection when:
– the dismissal is within 12 weeks of the action starting;
– it is after 12 weeks but the employee ceased the action within the
12-week period;
– the employer failed to take reasonable procedural steps to resolve
the dispute.
It is important to note that an employer can legally dismiss all those
who take part in unlawful action. In the case of unofficial action, the
employer can dismiss and later pick and choose who it re-employs
– with no protection from victimisation for those it chooses not to reemploy.
Discipline of Unite members not taking part  in industrial action
Trade unions cannot discipline members who refuse to participate in
industrial action. However, the union does expect members to abide by
the decision of the majority expressed in a legal and democratic ballot
of its members.

INDUSTRIAL ACTION
3. processes for initiating
industrial action
Any proposed action is identified as Industrial Action Although the legal requirements are the
industrial action
This is industrial action in a dispute which affects all members who are identified as being in dispute   Permission to take  rests with the regional secretary in
conjunction with the  general secretary for regions, following
a request from the officer acting as secretary to the relevant bargaining
group. subject to all legal processes being complied with.

All industrial action ballots are administered nationally by the regional or national  membership team.The appropriate regional member of staff who is dealing with the dispute will liaise with regional /national officer and workplace reps to make the necessary arrangements for the ballot
to take place, and will also notify the relevant national secretary of the
dispute. Guidance is available for regional staff covering all aspects
of the processes needed to conduct the ballot within complex legal
frameworks.

 

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