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Pam Loch

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A summer of strikes?

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The strike at the Lindsay Oil Refinery was a highly-publicised one. Since then, a number of other strikes have taken place with others being threatened. Pam Loch explains what HR professionals can do to avoid industrial action.

The Lindsay dispute – the unofficial angle   

 
Unlike other disputes the Lindsay dispute was different in that it involved unofficial industrial action – action taken without the official backing of a trade union. This is a crucial distinction because it can play an important role in the avoidance of strikes and what you can do as an employer when employees strike.  
 

Protected or not protected

 
As with most things, avoiding a dispute arising in the first instance is always better than trying to resolve it later. If relationships with the employees or their trade union representatives are good then issues can be resolved at an early stage. However if the issue remains a matter of contention employees may look to take industrial action to place pressure on their employer to accept their position.
 
Industrial action can take many forms – strikes, overtime bans, work to rules and sit-ins. What we have seen in the press are an increasing number of reports of employees taking action far more readily than in the past. Like the Lindsey dispute the employees concerned have also been prepared to take unofficial industrial action which is not protected. 
 

The background

 
The Trade Unions and Labour Relations (Consolidation) Act 1992 (TULCRA) had a significant impact on industrial action in the UK. It introduced the notion of official and unofficial action and protection that can be derived from official action.
 
TULCRA provides that industrial action will be regarded as being protected if the trade union that called the action has complied with the balloting and notification requirements of TULCRA. If it is protected then the trade union will be immune from liability in tort for any losses arising from the strike action and any employees taking part cannot be fairly dismissed during the first twelve weeks. (After that period they can be fairly dismissed only in certain circumstances.)
 
Since the introduction of this legislation there has been a significant reduction in industrial action. However it should also be remembered that since then the UK has been benefitting from a sustained period of growth where employers have perhaps been better placed to accede to employee demands. Recessions however usually bring a new dynamic to the employment relationship.  
 

Prevention

 
When the dynamics of the relationship have changed what can HR professionals do? 
 
Essentially communication becomes even more important in trying to prevent disputes arising or resolving them. Transparency and involving employees and their representatives wherever possible can be vital to head off disputes. If employees fully appreciate the financial constraints imposed on the business at all times, then trade unions and employees may be more amenable to for example, delaying pay increases. Releasing the information after the ball has started rolling is unlikely to have the same impact. 
 
Of course trust plays a large part and releasing information alone will not work if the employees or their representatives do not believe the information being released is true or accurate. 
 
If a potential dispute does continue to gather momentum then alternative dispute resolution processes should be considered. Some partnership agreements with unions will contain resolution processes but there’s no reason why other processes cannot be used if that fails. For example independent mediators may find a way through.
 
Processes like mediation however require voluntary participation by both parties. This may not be achievable if the parties’ positions are entrenched. In those scenarios it may be necessary to consider what steps have been taken by the union to ensure the action being proposed is official. Have the steps set out in TULCRA been taken? If not, are the unions or the employees aware of the implications? Do the employees appreciate they will not be entitled to be paid even if the action is official? Highlighting those points to employees could help to prevent the dispute continuing to develop into industrial action that could severely impact on the business in already stressed times.
 
The Lindsey dispute highlighted the ultimate sanction an employer can take if employees take unofficial action by dismissing employees. As long as the employer follows the correct processes to do this, dismissals can be fair dismissals. However this could be a high price to pay for employees during a recession. For employers, a work to rule or strikes can be debilitating for their business particularly during a recession. Avoiding disputes therefore is always the preferred goal but there are steps HR professionals can take to resolve them and protect the business.    
 
 
Pam Loch is founder of Loch Associates Employment Lawyers and managing director of HR Advise Me™
 
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