How Should Employers Manage Non-Compliant Industrial Action?
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Industrial Action: How Should an Employer Manage a Non-Compliant Ballot?

When an employer is confronted with industrial action, it’s fair to say it’s not an enviable position. As we know, industrial relations can enable an organisations progress but also impede it or even block and cause harm. In this blog we run through how best to manage those challenges and mitigate the effects of industrial action.

First things first, is the ballot legally compliant?

The first challenge (and it may seem obvious) is to decipher whether the ballot is to further a trade dispute. There must be a disagreement between the employer and the employees.

Secondly, the Government has highlighted the importance of ballots being properly mandated and supported. The new numbers require at least 40% voter turnout of the populated group affected. There also then needs to be majority support within that 40% voter turnout. Where special categories of employment are concerned, such as healthcare, border patrol and fire and rescue – special rules apply. Within these areas there has to be at least 40% support of the whole population of individuals affected.

So, what if industrial action isn’t legally compliant?

As an employer, if you are confident that the strike isn’t compliant and that the trade union haven’t got legal immunity from the strike, there are various options to consider.

Firstly, consider whether you need to prevent the action. This can be done via an urgent application to the high court through an injunction. Think before you go down this route, not only is it expensive and very difficult to obtain, but although you can win the application you may still lose the battle in terms of furthering the dispute, and therefore creating a position where the union digs in further.

Within non-compliant industrial action, individual employees are also exposed. Employers do have the option to take disciplinary action against them (including dismissal). If you decide to take this step, its best to look at the whole of the population rather than individuals involved – who would then claim unfair dismissal on an inconsistent approach. Most commonly, employers will settle for deductions from salary as this is something which is required if there is a withdrawal of work.

Once you have a compliant ballot, and the Union has gone through all the prescribed rules and requirements, you need to build a strategic framework in terms of your response. Unfortunately, there is no one-size-fits all response. The shape and size of the industrial action and the effect of it will be unique, and it should be considered as such.

First, assess the impact and the effect that the ballot will have on your business. Look at the effect on customers, service, reputation and the ability to meet statutory obligations. Then you can begin to consider what your dispute resolution procedures are and your approach to them. That’s your last chance saloon to avert the action and steer the union away from pursuing damaging tactics. Once you have been able to assess the impact on the business and assess one cost set against the other, then and only then can you consider a potential fall-back position.

Finally, an employer can deploy a number of workforce planning changes to try and mitigate the effects of industrial action. To ensure you continue to meet your service delivery requirements, you can; move the work to existing employees or different departments, use temporary staff recruited by the organisation (don’t use agency workers), or transfer services to external providers for a temporary period of time.

So whether in the heat of an immediate threat of industrial action, or just a failure to agree we believe organisations can work hard to meet those challenges in a forward-looking manner, to improve and successfully manage industrial relations throughout an organisation.

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Employment Law Industrial Relations

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