The most powerful tool at the hands of the employee is the withdrawal of their labour, without which the business cannot function.
Typically, industrial action takes place in relation to disputes over pay and benefits, but as we have seen in a number of disputes in the last year or two, other issues can be a feature. For example, rail workers have taken strike action in relation to proposals for removal of guards on trains, or plans to make stations unmanned.
While employees cannot be dismissed for taking part in strike action, they have no entitlement to pay from their employers for days on which they have not worked. Traditionally, larger unions were able to offer strike pay, equal to at least some of the individual’s foregone pay for strike days. However, this is now less common. Employers may, on occasion, choose to refuse to engage in negotiations with striking unions, either at all, or without a commitment to suspending or ceasing a strike. A prolonged strike may itself put considerable financial pressure on employees if a resolution is not speedily reached.
Both employees and employers should also be mindful of the effects of strike action on employment benefits, not least including leave entitlement. It is not uncommon for employers to see an increase in sickness absence during strike periods and while a reasonable level of evidence of sickness can be requested in line with normal practice, assuming that any such absence is not genuine may give rise to challenge.
Similarly, while maternity leave can be triggered by an employer if an employee is sick for pregnancy-related reasons in the four weeks before the expected due date, again employers must be cautious about the risk of being seen to subject an employee to detriment simply because she is pregnant or perceived to be taking part in union activities.
For example, while it may be possible for a woman on maternity leave to delay her return to work if ongoing strike actions means she is unable to legitimately do so, a woman who is already absent through strike action at the start of maternity leave may need to argue her case as to the start point for statutory maternity pay. Going on strike does not affect the individual’s continuous employment record.
Regarding holiday pay, if an employee is scheduled to be on annual leave when a strike begins then an employer must continue to pay holiday pay, regardless of whether the business is actually trading and generating revenue. Both sides in an industrial dispute should carefully assess their contractual obligations and entitlements, and the applicable statutory regulations, when assessing the effect of strike action on employee benefits.
It might be said that reaching a situation where industrial action takes place represents a failure on the part of both employer and union sides to resolve a dispute. However, the freedom to withdraw labour, albeit subject to certain constraints, is a counterbalance on occasion to overweening employer power and may bring added weight to negotiations on behalf of employees, provided that it is not abused.
Employee support for strike action will typically decline the longer a dispute goes on and pay is lost, so there is a careful balance to be struck on both sides even if they do reach a point where negotiations have broken down to the point of strike action being commenced.
Yvonne Gallagher is a partner at Harbottle and Lewis
