FAQs: Managing industrial disputes 

In the event of a teachers strike, what additional impact will the school closures have on providing emergency cover? 

• We understand that some staff may experience genuine difficulties with child care and other disruption to their domestic arrangements caused by industrial action in other public services. Employers will want to speak with their staff in advance to encourage them to make every effort to make alternative childcare arrangements so that they can attend work.
• Employers may want to consider the possibility of extending local work place childcare facilities where this is a possibility.   

• Employers can continue to use any agency workers already supplied on a 'business as usual basis' for the original purposes for which they were engaged. They should not however, be specifically re-deployed to the duties normally performed by those taking part in industrial action.  It is a criminal offence for an employment agency to supply agency workers to cover for striking employees. This prohibition does not apply to bank staff, if they are employed (or on the books of) the NHS employer.

• Industrial action that has not been endorsed or authorised by the trade union, or where the union has endorsed or authorised the action but has subsequently repudiated it.
• Where members of more than one union are taking part, all unions must authorise or endorse it, otherwise it is unofficial.

Who should the union ballot?

• All members of the trade union who it is reasonable for the union to believe, at the time of the ballot, will be induced by the union to take (or continue) the industrial action in question must be given equal entitlement to vote in the ballot. No one else may vote.
• The entitlement includes all employees and workers i.e. those providing personal service to the employer.
• Generally there should be a separate ballot for each workplace.

• If the union calls out the workers who were not properly balloted the action becomes official but unprotected action - so that the union loses its immunity from legal action.

How much notice of strike action do unions need to give to employers?

• Seven days notice must be provided to all relevant employers (any who employ members who will be called upon to take action) before industrial action can begin.  Each period of industrial action requires seven days notice.  

• The notice of strike action must state it is being given for the purposes of s.234A of TULR(C)A and say whether the action will be continuous or discontinuous. Where it is to be continuous, the date on which it will start must be specified. Where it is to be discontinuous, the intended dates on which it will occur must be given.  The notice should also contain either:
• a list of the categories of employee to be called out and a list of the workplaces at which they work together and figures showing the total number of affected employees with an explanation of how these were arrived at, the number in each of the categories listed and the number that work at each of the workplaces listed; or
• where some, or all, of the employees pay their subs by check-off then the notice must contain either:
• the same information as set out above; or such information that will enable the employer to 'readily deduce' the total number of affected employees, the categories of employee to which they belong, the number of employees concerned in each of those categories, the workplaces at which the affected employees work and the number of them at each of these workplaces
• where only some, of the affected employees, pay their subs by check-off, the notice may include both types of information. That is the lists, figures and explanations should be provided for those who do not pay their subs by check-off, whilst information relating to check-off payments may suffice for those who do. The Act specifically provides that a union is not required to disclose the names of those who will be called out.
• The information supplied should be as accurate as is reasonably practicable in the light of the information that the Union holds at the time.

• The union must give notice to the employer of all those employees it intends to call out and should therefore include reference to any additional workers, such as non-members who will not have been balloted, but who they may attempt to call out. If only these employees are called out, the union can retain protection.
• The union can call out those who have been balloted and non-members. It must not call out unballoted members.

• Generally speaking, industrial action must commence within four weeks of the last date of the ballot. The employer must be given at least seven days notice of the start date of the industrial action.
• The four week limit may be extended by agreement (with the employer) or by order of the court.
• In the case of agreement between the union and the employer, the ballot may remain effective for up to eight weeks from the last date of the ballot.
• Any such agreement must be made before the end of the normal four week window. 

How should we record Industrial Action in ESR?

• The ESR User Notice “Guidance on Recording Industrial Action” (UN1500) advises on how to ensure that pay is correctly reduced and disallowed days are reported to NHS Pensions.

• Any unions which has not balloted its members cannot urge them to participate in a strike that has been called by another union. However, an individual member that takes strike action, or a non-union member who refuses to cross a picket line on the day, will enjoy the same statutory protection as members of the union which has organised the strike action in their workplace, if the strike action is lawful.  

Can employers request confirmation from employees as to whether they intending to take strike action?

• On a national level unions have stated that they will co-operate to ensure that emergency cover is provided throughout the day of action. As long as there is no coercion or harassment, there is no legal restriction on steps taken by employers to persuade their staff to attend work on the strike day. Individuals are under no obligation to tell their employer if they intend to strike.

• On a national level unions have stated that they will co-operate to ensure that emergency cover is provided throughout the day of action. Staff can be redeployed if either (a) the redeployed work falls within the scope of any flexibility in their contracts of employment and job description; or (b) if they agree to an ad hoc redeployment.
• Staff are entitled to refuse if neither of these conditions is met but if the consequences of their refusal would inevitably put patients at risk, there may be professional conduct issues. Local employers will wish to check with the relevant professional bodies on the standards of conduct that nurses, midwives and allied health professionals would be expected to follow in the event of strike action, before any such referral is made.  
• The code does not prevent staff from taking part in lawful industrial action.

• So long as the employer makes it clear in advance that it will not be accepting or paying for part-worked shifts, it can withhold pay for the whole of a part-worked shift. If it does not make that clear in advance then an employee can take legal action to recover payment pro rata for the time worked.

• The notice of strike must specify the intended date for the action. For example,  if the only date on that notice is 30 November, but staff on night shifts fails to work on 1 December, technically any action on that date is not lawfully called and will be unofficial. Employers will want to discuss and agree with local unions how shifts should be handled as part of contingency planning around  rostering to cover the day. It is important that there is clarity for individuals working such shifts.

• This will depend on the nature of the activity. Many employers have indicated to us that they will not prevent staff from attending peaceful demonstrations during non-working hours (e.g. lunch breaks) but may not allow those demonstrations to take place on the premises.
• In practice, employers should deal with these points during discussions with the unions concerning a protocol for the strike day.

• If employees are on strike (that is, refusing to work at all) the employer need not pay them for the periods during which they are not working.

• Employers may wish to make it clear to staff that any employee who begins a period of sickness absence on the first day of industrial action, will be treated as taking part in the industrial action unless they supply evidence of their medical incapacity on their return to work.

What restrictions are there in relation to where the picket line can be?

• Employers prime concern will be to minimise any potential distress that may be caused to patients. The right to picket is a conditional right for an individual to be present on the public highway outside his or her own workplace (but not to obstruct it) in order to have the opportunity of peacefully persuading anybody who is willing to listen.
• There is no right to picket on the employer’s premises.  However, taking into account the need for emergency access and the desire to minimise any potential distress for patients, the employer may wish to permit this in some cases because it may lead to less disruption.

• There is no legal restriction on the numbers of individuals who can picket. However, the Government’s Code of Practice, sets the standard of good industrial relations and will be taken into account by a Court.
• The Code states that excessive numbers on picket lines are undesirable.  It recommends that the picket organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit at a workplace.

• The right to picket is a conditional right for an individual to be present on the public highway outside his or her own workplace (but not to obstruct it) in order to have the opportunity of peacefully persuading anybody who is willing to listen.
• There is no right to picket on the employer’s premises. However, taking into account the need for emergency access and the desire to minimise any potential distress for patients, the employer may wish to permit this in some cases because it may lead to less disruption.

• Yes, as long as they represent and are accompanying either a worker or ex-worker involved in the dispute, at the worker or ex-worker’s place or last place of work.

• If the worker is a mobile worker, or any other worker who does not work at one particular place, that worker can picket any premises of his employer from which he works or from which his work is administered. This will apply to employees who divide their time between two or more sites.