Industrial Action

Who can go on strike on 30 November 2011?

The staff who can properly participate in the industrial action are:

Those in a union which has authorised its member to take action presumably having successfully balloted its members (eg Unison, Unite) ; and
Those not in any union.

Those staff who are in a union which has authorised the industrial action (eg RCN, RCM) may not properly participate. This would be unofficial strike action for this group of staff.

If non-union staff take industrial action, will they not be in breach of contract?

Yes, but the staff in a trade union are also in breach of contract. The legislation makes industrial action “official” for both non-union staff as well as the staff in the union that has authorised the industrial action. Staff engaged in official industrial action receive certain protection regardless of whether they are in a trade union.

If the RCN are not balloting their members, does this mean they cannot strike?

Any RCN members who take industrial action, will be taking unofficial industrial action and so have no protection and could be dismissed selectively. Although the RCN could call out its members (and so make the action “official”), it is very unlikely to do so, because the RCN itself would have no protection.

How do I know if a union has authorised the industrial action?

This will depend on the facts in each situation. For example, if there are RCN officials on picket lines and participating, the RCN could be treated as endorsing the industrial action unless the RCN repudiates the action.

What about staff who do not cross picket lines?

It is likely that staff who do not cross a picket line will be treated as participating in the industrial action. For non-union members and those in a union that has authorised the industrial action, staff who do not cross the picket line will be taking official industrial action. For staff in other unions who have not authorised the industrial action, they will be taking unofficial industrial action.

What is the difference between “official” and unofficial industrial action?

Official industrial action means that the trade union has authorised or endorsed the action. This gives staff taking official industrial action a minimum level of protection. Staff have additional protection if the industrial action is protected (ie the union has properly balloted its members). Staff who are involved in unofficial industrial action have no protection at all.

Can I use NHS Professionals to supply staff to cover taking industrial action?

Where strike action is official, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevents an employer from hiring a temporary worker to perform the duties normally performed by an employee who is taking part in industrial action. An employment business, which in this case would be NHS Professionals, supplying workers in these circumstances will be committing a criminal offence, and the employer, i.e the NHS organisation, could be found to be aiding and abetting that offence.

Can I use staff from our bank to cover for striking employees?

Yes. The restrictions on employment business supplying staff does not apply to your own staff. You may have to check employment contracts to see if staff can be required to switch duties, however, there are no difficulties if staff agree to alternative duties.

If an employee takes part in industrial action for only a part of their shift are they protected?

Yes. There is no requirement for an employee to fully participate in the strike in order to get the protection granted to authorised industrial action.

Some striking employees have agreed to come into work at the weekend in order to catch up on activity lost during the strike. Can I just pay basic pay as if they had worked on the day of the strike.

Unfortunately, not. The staff should be paid whatever the going rate is at the time the work is actually done. Assuming the staff are on AFC, weekend work would result in unsocial hours payments. There would be no entitlement to overtime payments in the week of the strike until the full time hours have been worked (para 3.4 AFC) so staff would have to make up time lost during the strike before receiving overtime payments.

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