This was written by Martin Chitty, employment specialist at Wragge Lawrence Graham and Co.
After weeks of discussions the union threatens an immediate strike. What are your options and how fast can they move? Can you backfill the roles and, if you want to, can you dismiss the strikers? We look at trade disputes from an employer's perspective, addressing the key issues and how best to approach them.
Unless the union wants to expose itself and its members, there is no such thing as "immediate" strike action. The law sets an obstacle course designed to slow it down, with gun to tape taking around 28 days.
The union has to ensure the following:
-that you (the employer) receive seven days’ notice of the ballot
-that you have a copy of the ballot paper three days before it goes out
-the running of a postal ballot
-both you and the union members are informed of the outcome
-that you receive a minimum of seven days’ notice of any action (allowing you time to negotiate and understand your employees’ issues, mitigating any risk of unions being able to divide and rule and, even to go to court if the union's process is defective).
If unions ballot the wrong people, the process is defective and can be stopped. The same applies with material defects in any notices given to you or the membership. It is worth checking this every step of the way.
All of those who might be called out have to be balloted; unions do get this wrong. The same with the outcome – the result has to go to every voter (although, missing one in 20,000 is not going to be fatal).
This communication can be done by post, email, or even text, but it must happen. This has often been the focus of the cases in recent years, where employers have challenged the validity of the ballot. That challenge is not to be undertaken lightly – it has to be done quickly, it is very expensive and tends to inflame the situation. Against that, it might stop the strike either temporarily or permanently and gives you more time to negotiate a solution.
If the union gets the support they might picket. But the law limits how this is done: only at their own place of work; only in small numbers; not on your property; not with non-employees from outside bussed in to intimidate or support.
Loss of production is damaging; can you bring other staff in?
Yes, but be careful.
If you can re-deploy your own non-striking staff you are fine; the same applies if you can recruit directly employed staff to cover the gaps, although this is a bit impractical given the limited needs you have.
Using agency staff is not an option; not because you are liable but because the agency will be committing an offence if they supply them under these circumstances. Your best bet is looking at maintaining flexibility within your own workforce.
These days, it is rare for an employer to consider the nuclear threat of sacking the strikers. There are two reasons for this:
1) it makes the industrial relations even worse; and
2) properly balloted action gives the strikers the right to claim unfair dismissal if they are sacked within 12 weeks of going on strike.
If the action is not properly balloted then you have more flexibility if you want to make an example of people, although this could lead to a backlash in the workplace.
