Legal Article - Employment Law

Industrial Action: Ballots and Notice to Employers

Where possible, employers should be careful to avoid dispute with employees. As good practice, employers should look to inform and consult employees on all matters by way of staff forums, meetings and regular Trade Union consultation.

If industrial action does arise, employers should follow procedure and look to dissolve problems as soon as possible.

Trade Unions have immunity from legal action when encouraging their members to take some form of industrial action (e.g. strike, banning overtime, work to rule) providing they hold a secret postal ballot of all members they propose to call Out on strike etc. and that the action is supported by a majority voting in favour.

All ballots involving more than 50 individual voters must be subject to independent scrutiny. The trade union has to appoint this person, who has to produce a report stating that the ballot has been conducted properly. An employer can request a copy of the report provided the request is made within six months of the date of the ballot.

The union must also ensure that:

i. the voting paper must contain at least one of two specified types of question, both of which must be capable of a ‘Yes’ or ‘No’ answer: these are a question which asks whether a person is prepared to take part in, or continue to take part in, a strike; or a question which asks whether the person voting is prepared to take part in, or continue to take part in, industrial action short of a strike.

ii. The voting paper must specify who is authorised to call a strike, the address to which they are to be returned and the date, and must be consecutively numbered

iii. The voting paper must contain the following statement “if you take part in a strike or other industrial action, you may be in breach of your contract of employment”

iv. Give the employer in writing at least 7 days before the ballot a notice stating

• That the union intends to hold the ballot
• the date the union believes will be the opening day of the ballot
• describe those employees who it is reasonable for the union to believe, the time the notice is given, will be entitled to vote in the ballot. This description must be such as to enable the employer readily to ascertain which employees are involved.

v. all reasonable steps are taken to ensure that those entitled to vote and their employers are informed of the details of the outcome of the ballot

vi. Give the employer in writing 7 days notice of any intended action. The notice must be in writing and must describe, in such a way that the employer can readily identify them (but without giving their names), the employees of that employer whom the union intends to call upon to take action and must also state whether the action is intended to be continuous or discontinuous.

Where the action is to be continuous, the notice must specify the intended date for the affected employees to begin to take part in the action. Where the action is intended to be discontinuous, the notice must state the intended dates for any of the affected employees to take part in the action.

Since each date on which action is to take place must be covered by seven days’ notice, the union will either have to specify a full list of days of action at the outset or, alternatively, give a separate seven days’ notice of each stoppage

vii. The notice will not be valid, and consequently the union will not be protected in tort, if any employees covered by it are induced to take part in action which is outside the terms of the notice, either before the notified start date of the action or, if the action is discontinuous, on a day which has not been specified in the notice. Where continuing action has been taking place which the union has ceased to authorise or endorse and the union wishes to restart the action, either as continuous or discontinuous action, the original seven days’ notice cannot be relied upon. New notice must be given.

The ballot ceases to be effective after four weeks from the date of the ballot. The trade union loses its immunity if the purpose of the industrial action is

• To enforce trade union membership

• In support of a member who has been dismissed for taking unofficial action

• Secondary action i.e. in support of a third party who is not the employer party to the dispute

• Pressure to impose a union membership agreement.

In the course of lawful industrial action, employees and trade union officials can peacefully picket the workplace for the purpose of communicating information, or persuading someone to stop working.

In addition, employees taking “protected” industrial action i.e. the union has complied with the legal requirements governing the organisation of industrial action will have the right to claim automatic unfair dismissal, irrespective of age or length of service, if the dismissal takes place:

• Within a period of 8 weeks, beginning with the day on which the employee started to take industrial action

• After the end of the eight weeks where the employee stopped taking industrial action before the 8 week period ended

• After the end of the 8 week period where, although the employee has not stopped taking action, the employer has not followed all reasonable steps to resolve the dispute.

“All reasonable steps” will include complying with procedures laid down in any collective agreement, including any industry wide agreement, and whether, after the industrial action began, either side:

• offered or agreed to start or restart negotiations

• Unreasonably refused a request to make use of conciliatory services

• Unreasonably refused a request to make use of mediation services in relation to the procedures to be adopted for resolving the dispute.

Apart from the above, an employer can dismiss employees on a lawful strike without fear of an industrial tribunal case providing all of them are dismissed. They must not re-employ selectively within 3 months of the dismissals, otherwise those not reemployed can claim unfair dismissal. The employer does not, of course, have to pay employees while they are taking industrial action.

An employee has no right whatsoever to complain of unfair dismissal if, at the time of the dismissal, they were taking part in “unofficial” industrial action. Employers may, therefore, selectively dismiss such employees without losing their “immunity” from tribunal claims. Action is “unofficial” if an employee’s own union is not supporting it because the union does not have legal immunity.

Strike action does not break an employee’s continuity of employment, but any time during which an employee is on strike does not count towards establishing continuity. If an employer institutes a ‘lock-out’ (i.e. refuses to let their employees work) the employee’s can claim either wrongful or unfair dismissal or breach of contract.

Published: 03 Jun 2011


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