Employment Law: What if industrial action affects your staff?

It is hard to avoid the news of various strikes, and how they are affecting the country as a whole. Many small employers will find that their staff are affected, even though they as a business are in an unaffected area.

It goes without saying that businesses directly linked to workers in striking areas, for example, rail, will notice an immediate effect. The purpose of this article is not to discuss the merits or otherwise of any industrial action, or even to deal with those who employ staff in directly affected areas, but what specifically should employers do if any industrial action affects employees ability to either get to, from, or even perform their role. In many respects, being alive to the secondary effects of industrial action is important for small employers as, if staff are unable to work in full, this may have an adverse effect on the employer’s business. 

Whilst different public sector workers are striking at different times, all of the above issues could affect the workplace generally:

1. Rail strikes

It goes without saying that these are likely to be the most consequential for unrelated employers. A  number of issues could arise, the most obvious being the inability of employees to either get to work or get home from work. Given that such strikes are announced in advance, employees and employers will have a clear timetable of any affected days, and can plan in advance. The day (particularly the evening) before, and the morning after should also be considered as potentially affected periods. The simple position is that staff may not be able to attend work on those days, and employers should engage with them early about alternatives:

i) Is working from home possible? Many office based employers already have a hybrid workforce in place, and it would be reasonable for them to adjust working patterns on strike days;

ii) Are alternative forms of transport to work possible eg car shares, and if not, if the employer considers the employee’s attendance crucial, could they fund taxis?;

iii) Could annual leave or unpaid leave be used by agreement? 

Employers may be faced with a situation where employees refuse to co-operate, or feel they have no choice but to try and enforce attendance. This course of action should not be taken lightly. Firstly, do they have a contractual right to do so (unlikely), and secondly, what action will they take? An employee dismissed in such circumstances would have a strong case for unfair dismissal.

2. Teaching staff strikes

The obvious knock on effect from any such industrial action, would be that staff are unable to attend work, or potentially even work remotely, if they have unexpected childcare obligations as a result. Employer’s should, as with the above, engage early, work out how and which staff are affected, and try and reach compromise. Employers should also be aware that staff have the right to take off emergency leave to deal with dependent issues. A last minute childcare issue because issues had not been dealt with early, may come under that.

Employers should also be aware of potential discrimination issues surrounding childcare issues. For example, if there are teacher strikes, and an employer refuses all requests for time off to deal with this, that could be potential sex discrimination, as statistically, women are more likely than men to face childcare obligations. By engaging early, employers will avoid potential claims.

3. NHS strikes

This type of industrial action could have a secondary effect on employers, for example:

i) Staff may be out longer for pre-arranged appointments;

ii) Those appointments may be moved on short notice;

iii) Staff taking family members may have similar issues (and similar effects to 2 above);

iv) Staff could be off sick for longer periods if treatment is harder to access.

As with the other examples above, engaging early and agreeing a sensible policy and/or process is key.

As with any external issue that affects employees, identifying that issue early, considering possible effects, liaising with employees and finding possible solutions will always put the employer in a better position than being reactive. The ongoing effects of Covid-19 were an example of this. Those employers that continued dialogue and identified solutions, avoided claims, and had a more harmonious relationship with their workforce.

Please always take advice on any staff related issues.

Alex Jones
365 Employment Law Solicitors
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk