Prosper Autumn, Black Country Chamber of Commerce magazine

LEGAL BRIEFING: INDUSTRIAL ACTION
All out – from black gowns
to donkey jackets
You can’t have failed to spot the growing discontent in some workplaces as employees
from bus drivers to barristers, postman to railway workers take industrial action as they
demand a fair settlement to tackle the cost-of-living crisis. Prosper asked Amy
Brokenshire, HR lawyer and a Partner at Black Country law firm, George Green LLP,
whether this trend would continue – and how best to tackle it
The Manchester Evening News reported
recently that Sir Cary Cooper, a professor of
organisational psychology at the University
of Manchester, has warned the current
situation of rising inflation, rocketing
household bills and stagnant wages could
lead to the most widespread industrial
action in decades, possibly even worse than
the national discontent of the 1970s.
“I think the time is slightly different to the
1970s because there are so many adverse
factors at play here,” said Prof. Cooper.
“When we had the strikes before it was
partly about inflation and bad industrial
relations between unions and management.
“This time it’s much more complicated.
Complicated by Brexit, the war in Ukraine
and the impact on energy prices. It’s the
cost of living, and I also think general
instability in leadership at the moment is a
very important psychological factor. People
are thinking they have to take care of
themselves and their families and they feel
they will have to take action.
“If we look at the percentage of people
voting to take strike action in some cases, it is
extremely high. It was never this high in the
1970s. We get the manifestation of the 1970s,
but I think it’s a lot worse now and people are
probably more prepared to strike.”
Strike action grips the nation
A growing list of workers across the UK
are staging walkouts in recent weeks. In
June, workers at one of Coca-Cola’s UK sites
threatened to down tools amid a pay row
and accusations of bully tactics from bosses.
Approximately 60 workers at the soft
drink giant’s bottling plant in Wakefield,
Yorkshire, unanimously rejected the
company’s latest pay offer, and subsequently
prepared to stage an industrial action ballot.
That same month, thousands of railway
workers launched the biggest rail strikes the
country has seen in decades, bringing many
parts of the country to a standstill. The RMT
union, which represents rail workers, said
the first general strike since 1989 is being
held in response to below-inflation pay rise
offers and the threat of compulsory
redundancies – which the union warns would
create safety risks on Britain’s railways.
Elsewhere, pay and working conditions
also saw barristers across England & Wales
stage pickets outside courthouses across
the country. Barristers say real earnings have
collapsed, dropping 28% since 2006, with
junior barristers earning a median income of
only £12,200 in their first three years, forcing
many to give up their career. They voted for
action over the summer with more than 80%
of its 2,055 members backing walkouts.
Meanwhile, one of the most famous
retailers in the country, Harrods is preparing
to use agency workers to replace staff who
could go on strike – which would make them
the first major firm to take advantage of
controversial new laws which MPs approved
in July.
Controversial changes to the law allow
agency workers to fill in for staff on strike,
partly in response to the growing number of
sectors, such as rail workers, staging strikes
over pay disputes and working conditions.
But what does the law say about industrial
action? On its website, Unison explained
that, in addition to strikes, industrial action
can include ‘go-slows’ or ‘working to rule’.
Although there is no positive legal right
to strike in the UK, strike action organised
by a trade union is legal provided some
tough conditions are met.
For example:
• The union must have conducted a lawful
ballot of all the members it believes will be
called upon to take part.
• The action must be over a trade dispute
between workers and their employer over
an issue such as terms or conditions of
employment and as defined in s.244 of the
Trade Union and Labour Relations
(Consolidation) Act 1992.
• The general secretary or someone else
authorised by the union’s rules, must
authorise any industrial action.
• The person named on the ballot paper
must make a call for action before industrial
action can take place.
There are very strict rules about the ballot
and the notice that must be given to the
employer about the action.
Unison also said it is “automatically
unfair” to dismiss someone who’s taken part
in any lawful industrial action within 12
weeks of the action. Employers can deduct
pay for striking workers, but this can be no
more than one fifth of weekly pay for a day’s
strike action.
HR lawyer Amy Brokenshire told Prosper,
“In the current economic climate, it is
reasonable to think that the UK labour force
will be more inclined to look to trade unions
for support and protection than they may
have been in recent years. This in turn could
result in an increase in industrial unrest.
“This was readily apparent during the
‘Summer of Discontent’, with large scale
strike action in various industries hitting the
headlines in recent months.
“Trade unions will be liable in tort if they
induce their workers to take part in industrial
action unless it is ‘protected’.
“Certain conditions must be met in order
for industrial action to be protected,
including specific conditions around
balloting for strike action. As such, an
employer faced with the prospect of
damaging strike action may wish to take
specialist advice from an employment
lawyer to understand their options and
what, if any, legal action may be appropriate
in the circumstances.”
“It is also worth remembering that strikes
aren’t the only way that workers and unions
are able to cause disruption to an
employer’s business.
“Workers can also decide to take action
short of a strike, such as working to rule or
46 PROSPER AUTUMN 2022