On 13th October 2014, up to 500,000 NHS employees went on strike between 7am-11am. For the following four days staff took industrial action short of a strike.
What does this mean for employers?
With such numbers of employees involved in the strike action, it inevitably had a detrimental effect upon NHS service delivery, which is why it is important that employers are aware of the steps to take in these circumstances and forms of legal recourse available.
Strike action effectively involves the unilateral withdrawal of the employee’s labour and it will therefore amount to a breach of contract; this may also be the case where employees take action short of a strike (for example, refusals to work overtime). These breaches of contract may be actionable in certain circumstances, however, where the strike action is official or where employees who are not part of a union take part in official strike action, then the employees will be afforded certain legal protections.
Are there any steps an employer can take?
1. Withholding pay
As stated above, the withdrawal of labour in the form of strike action or other types of strike action will usually be a breach of the employee’s employment contract, and so the employer can withhold pay (wholly or in part).
Consideration will, however, need to be given to those staff taking part in the strike who are then absent due to annual leave or sickness absence. In such situations, technically, there has not been a withdrawal of labour and so the employee ought to be paid for these absences but steps ought to be taken by the employer to clarify that any sickness absence is genuine.
Employees who take part in industrial action cannot bring Employment Tribunal (ET) claims for unlawful deductions from wages, if the reason for the deduction is the industrial action.
2. Partial performance
Where employees take action which is short of a strike, such as performing only some of their duties or refusing to work their full contracted hours, the employer may demand that employees comply with their contract or stay at home and not be paid; an all or nothing approach.
Alternatively, the employer may decide to accept partial performance and pay the employee for the work they perform only; this may be a solution to covering gaps in the service provision.
3. Agency Staff
Employers are prevented by statute from using agency staff to perform the duties of those employees on strike, or to cover the duties of any other worker who has been asked to cover the duties of a striking worker. This does not prevent the employer from utilising its internal bank staff resources to cover for the workers on strike or from ‘reshuffling’ existing employees in the organisation.
It is a criminal offence for an employment agency to supply agency workers for these purposes, and the employer receiving those workers, could also be liable for aiding and abetting.
4. Risk planning/emergencies
Risk planning is critical and should be undertaken as soon as the organisation is aware of the potential action. Under the relevant legislation, a person who wilfully and maliciously breaks a contract of service, knowing or having reasonable cause to believe that the probable consequences of doing so, either alone or in combination with others, will be to endanger human life or cause serious bodily injury or expose valuable property, whether real or personal, to destruction or serious injury will be committing a criminal offence.
In the context of health services (or the like) unions should be asked at an early stage how they propose to comply with the legislation (detailed in the preceding paragraph) during the period of the strike, as of course, there are considerable and serious patient safety risks involved. Employers are encouraged to identify which departments ought to be exempt from strike action (with reasons) for these purposes, and to enter into communications with the unions to ensure these departments are sufficiently staffed during the strike action. A further option to address emergency patient care requirements is to ask for employees on strike to be on call, in the event an emergency situation arises. In doing so, the employer will need to consider whether or not to pay full pay to this employee for the duration of the on call period.
Employees on strike will need to be mindful of their professional registration obligations, which will include their duty of care to patients.
Any dismissal of an employee for taking part in or having taken part in protected official industrial action will be automatically unfair. Employers should note that employees who are not members of any union but who take part in official strike action will also have protection from unfair dismissal.
Employees may bring claims for unfair dismissal if they are dismissed for taking industrial action at any time within the 12 weeks after the action began. After 12 weeks, the employee may be dismissed for on-going industrial action where the employer has tried to take reasonable procedural steps to settle the dispute.
An employer will have a greater chance of successfully defending an unfair dismissal claim where the employee has been dismissed for taking part in unofficial strike action, in circumstances where a fair process has been followed.
Some key employer considerations:
- Consider whether staff who are not on strike can be redeployed
- Are bank staff available to cover the work?
- Can the organisation accept partial performance, to enable the safe delivery of service?
- Consider if there are services which will endanger patients life or cause serious bodily injury if not sufficiently staffed, and discuss with the unions how staffing levels will be maintained during the period of the strike
- Can staff be asked to work on call in the event of an emergency?
Click one of our articles to continue reading about duty to make reasonable adjustments, dependants leave and disappearing employees and the latest TUPE update. Binding communications about pay, the on-call conundrum, the future of Employment Tribunal fees, the scope of reasonable adjustments and finally In a nutshell.