Download or view the Industrial Action Handbook
Notes and Guidelines for Managers,
in the event of Industrial or Strike Action
(N.B. – Throughout the Notes and Guidelines the term ‘Manager’ should be read as applying to Heads of Service, Headteachers, Heads of Establishments, Managers and Unit Supervisors responsible for any employees involved in industrial action)
IN THE EVENT OF STRIKE ACTION
Notes and Guidelines for Managers
These are currently issued in the context of strike action taken by unions recognised by the Council.
(N.B. - Schools, Educational and Residential Establishments - Additional provisions may apply particularly where there is a duty of care towards pupils and clients – details will be issued separately by Service Management where necessary)
There are a variety of situations which could arise as a result of strike action. These notes and guidelines are based upon the likelihood of the most commonly encountered situations. They are not therefore exhaustive. Where situations not covered in this paper arise, immediate advice should be sought from HR before any action is taken.
UNION MEMBERS ON STRIKE :
Strike action is only permitted where it arises as a result of a valid ballot and where the action conforms to the legislative requirements for notice, etc. Employees should be aware that if they take strike action, which does not comply with the legislative requirement, they might be in breach of contract. Before any action in relation to ‘illegal’ strike action is taken it is essential that the proposed action is discussed with the Chief HR Officer before implementation.
Employees involved in any strike action are not entitled to receive pay for any periods of absence from work arising from such strike action. Unions should ensure that they accurately identify those of their members eligible to take part in strike action.
Managers should make arrangements to ensure that they are able to clearly identify all employees who do not report for work during a period of strike action.
UNION MEMBERS WHO ATTEND WORK DURING STRIKE ACTION
Should be treated as normal in all respects. Attendance should be noted so that these employees may continue to receive their normal pay.
Under law, a Trade Union cannot discipline a member who attends for work.
Managers should ensure that an employee’s right to work is fully respected. Where you become aware of any immediate or subsequent action either threatened or taken by a Trade Union in this regard, or suspect that such is the case, you should immediately contact the Chief HR Officer for advice.
PICKETING AND PICKET LINES
Under the Statutory Code of Practice issued by the Employment Department in 1992, it is recommended that a maximum of six pickets should be deployed at any site. More than six would not however be unlawful per se, however the Police do have the authority to reduce the size of the picket if they consider that a breach of the peace has arisen. Action by pickets, which is intimidatory, may constitute breach of the peace.
The purpose of picketing is for a Trade Union to be able to explain its position and to persuade other persons from entering the premises. ‘Persuasion’ by force, restraint or any form of intimidation is unlawful. A Picket cannot prevent an employee from entering the workplace.
The Picket should consist of employees from that workplace only and their trade union representative. Pickets can be formed at the entrance and exit of the workplace.
Ex-employees are not entitled to picket (unless they have been sacked in connection with the trade dispute).
A Trade Union cannot take disciplinary action against one of its members for crossing a picket line, even where the strike action has been properly constituted.
When one trade union has formally notified industrial action, only members from that trade union may form a picket. Employees in other trades unions are not eligible to join the picket line.
Unlawful picketing may expose the Union (and the pickets themselves) to civil liability.
Managers should discuss with employees who have indicated they wish to attend work but have concern over crossing a picket line, what support they may need, for example, the employees could meet with the manager or colleagues and walk across the picket line together.
4UNION MEMBERS WHO CLAIM TO HAVE BEEN PREVENTED FROM ENTRY AGAINST THEIR WILL
As stated above, such would be an unlawful act. You should however take all reasonable steps to make a clear distinction between those who claim to have been prevented from entry and those who may have been willing to attend work butwere properly persuaded by the pickets not to cross the line. In the former it would be inappropriate to regard the employee as having taken part in the strike, but in the latter case clearly the opposite view could be taken.
As above, such instances should be reported immediately to the Chief HR Officer.
Upon resumption of normal working, it would be reasonable for Managers to request a written confirmation of the facts. Where the explanation given is satisfactory, persons who have attempted to attend work each day (or if there are acceptable extenuating circumstances), but have been prevented from entry will normally be given their appropriate pay entitlement.
5EMPLOYEES WHO ARE MEMBERS OF OTHER TRADE UNIONS AND OTHERS WHO REFUSE TO CROSS A PICKET LINE.
Employees who are members of other Trade Unions (which have not sanctioned the strike action) who refuse to cross the picket line will be participating in unofficial (ie unprotected) industrial action. Such employees could be found to be in breach of contract and disciplinary action may be taken against these individuals, up to and including dismissal. The Council may also take appropriate legal action against relevant Trade Unions in respect of any unofficial industrial action which the Council has grounds to believe has been endorsed by any Trade Union without completion of the appropriate statutory steps to sanction the action.
Non-union members who take part in a strike would be protected in the same way as members of a Trade Union which has taken the appropriate steps to sanction the strike action, provided they fall within the definition of affected employees.
6TIME OFF - UNION AND NON UNION MEMBERS
Applications for annual leave to be taken for days of intended strike action should not be allowed after the intimation by a Trade Union of a written formal notice of industrial action.
Managers may however exercise some discretion in the event that there are genuine extenuating circumstances, which were not foreseen before the formal notice of industrial action was received (e.g. time of to attend a funeral).
The Chief HR Officer should be notified, without delay, in all cases where leave has been granted after the receipt of notice by the Trade Union.
Leave already approved in advance should not normally be cancelled.
You must be alert to the situation where a member of a Trade Union reports as sick in order to avoid loss of pay while wanting to be seen to support the strike. The Supporting Attendance procedures must be strictly applied and all employees interviewed upon return to work.
On any strike days the use of Self Certification is suspended, any employee (either Union or non Union members) absent through sickness must produce a Fit Note from their GP.
SSP, SMP, Maternity Leave, Adoption Leave, Parental Leave
SSP continues to be payable to those who qualify and are genuinely off work through illness before a stoppage of work has commenced.
N.B. - Please note that If the sickness absence starts on or after the first day of the stoppage SSP is not payable UNLESS the employee can show that he or she has no interest in the dispute and has not participated in it OR where he or she has been off sick within the 15 days prior to the stoppage.
SMP/SPP is not payable if the employee is absent from work because they took part in industrial action.
An employee on Maternity/Adoption/Parental Leave in accordance with the statutory
provisions can delay her/his return to work without losing her/his right to return if the
industrial action makes it unreasonable for her/him to return.
Applications for special leave (e.g. bereavement) may be granted subject to the normal procedures. Where this is considered appropriate it would be acceptable for Managers to request written or other confirmation of the circumstances justifying the special leave.
Applications should be dealt with as per annual leave.
Working from Home
All employees, other than those who are eligible to and who take part in authorised strike action and those whose time off has been authorised in accordance with this section are required to report for duty at their normal place of work or as otherwise directed by their Service.
Managers are not to authorise any working from home for days of strike action.
Paid Time off for Trade Union Duties and Activities
The rights of trade Union officials to time off in respect of Trade Union Duties and Activities are prescribed in sections 168-173 of The Trade Union and Labour Relations (Consolidation) Act 1992.
Paid Time off may be allowed for officials to organise and vote in ballots for industrial action and for participation in discussions aimed at avoiding threatened action.
However in itself, Industrial Action is not regarded as a Trade Union Activity. Paid time off should be allowed to officials during a period of strike action where it can be satisfactorily established that they were engaged on matters on behalf of their members but not whilst taking part in the industrial action per se.
7EMPLOYEES TAKING STRIKE ACTION DURING PERIOD OF NOTICE
It is possible that at the time of a strike, an employee may be working a period of notice (e.g. the employee may have resigned). Usually, there is a clear obligation on the employer to pay full pay during the period of notice. However, if such an employee takes part in strike action during this period, he or she will not be entitled to pay for the relevant period of time.
8CONTINUITY OF EMPLOYMENT
A strike would not break an employee’s continuity of employment, provided that the employee continues to be employed.
However, the time taken when an employee is on strike does not count towards the accumulation of continuous service for qualification for an employee’s conditions of service or statutory rights and entitlements.
An employee who is absent due to taking part in a strike may buy back pensionable service in respect of the time lost. The cost will be approximately 16% of lost pay.
9PAY DEDECTIONS BECAUSE OF ABSENCE ARISING FROM STRIKE ACTION
In respect of absence due to strike action, a deduction of the appropriate pro-rata daily amount of the employee’s weekly pay or annual salary for the grade will be made in respect of each days absence. This will normally be as follows:
Single Status employees -1/261th
Single Status employees (term-time) -Contracted Daily Hours
Temporary Teachers-1/235th or contracted hours
N.B. - There will be variations on the above in accordance with particular conditions of service, special circumstances, shift patterns or non-standard contracted hours.
Under Teacher terms and conditions they do not accrue leave for days not worked. The daily amount deducted is 0.2051.
In advance of strike days Payroll Services will issue lists of employees to each Service. Services must mark on the list details of employees who are due a pay deduction (in hours) and return the completed lists to Payroll Services in accordance with instructions given.
10HEALTH AND SAFETY
Employer responsibilities will continue under the Health and Safety at Work Act 1974 and under any of the Management of Health and Safety at Work Regulations.
Employees at work have a continuing duty to take care of themselves and others and must co-operate fully with any Health and Safety measures.
Those who go on strike have a legal duty up to the point when they are no longer on duty and would be in breach of their responsibilities if they left any item of equipment, machinery or worksite in an unsafe condition.
Additionally, under the Council’s Disciplinary Procedure, it is considered to be an act of Gross Misconduct if any other persons are placed at risk as a result of an employee’s failure to observe Health and Safety requirements. This could result in dismissal. In the event of forthcoming strike action, you must also take all steps as necessary to ensure Health and Safety.
In the event that you have any concerns about Health and Safety issues you should immediately contact Nick Sabo, H&S Adviser Tel 01786 442957.
Chief HR Officer
Tel 01786 233294