TACKLING INDUSTRIAL ACTION IN THE EDUCATION SECTOR

Mary Siddall and Ben PowerSpringhouse solicitors

Is strike action lawful?

• Industrial action has ‘immunity’ from legal claims if it meets specific requirements

Prohibited Industrial Action

• To enforce a closed shop• To support workers taking ‘unofficial industrial

action’• Secondary industrial action• Unlawful picketing

Is picketing lawful

• Can be an issue in education, eg disruption of graduation ceremonies, governors or council meetings, protests at school or college gates

• Will be lawful if at employees’ own place of work and designed to persuade others not to work or communicate information about the dispute

• Will be unlawful at another’s place of work

Guidance on picketing

• See ACAS Code of Practice on Picketing• Possibility of an injunction to restrain unlawful

picketing? See Gate Gourmet case

Picketing v peaceful protest?

• Distinguish picketing from ordinary right to peaceful protest

• Permission to enter onto premises?• Is a policy needed to govern protests on

campus, to cover both industrial action and eg protests against visitors?

Balloting requirements

• Industrial action that is unsupported by a properly conducted ballot will be unlawful

• All members who may be induced to take part in industrial action should be balloted

Notification Requirements

• The Union must give the Employer– 7 days notice of intention to hold a ballot– A copy of the ballot paper, 3 days in advance

Notification requirements (cont)

• Notification of the result of the ballot as soon as reasonably practicable

• 7 days notice of industrial action

Employers conduct during a ballot

• Employers can write to employees:– Encouraging them to vote ‘no’– Describing the impact of industrial action eg on

students, exams etc– Reminding them that employees could lose pay– Avoiding any detriment on grounds of trade union

activities etc

Preparing for strike action

• What can an employer do in anticipation of strike action?– Contingency plans– Asking staff if they are/intend to be on strike– Making clear what is expected of staff eg on a

‘work to rule’

Pay for workers on strike

• No obligation to pay striking workers• No obligation to accept partial performance if this amounts to

a breach of employee’s contractual duties – make this clear to employees

• What are the contractual duties?• Partial pay for partial performance? Examples are:• Deduction of 5/36ths where the teacher refused to teach 5

extra children• Deduction in respect of time that a teacher would have spent

covering a colleague’s class• Withdrawal of goodwill – no deduction if no breach of contract

Are workers participating in strike?

• Judge by what they do not what they say• Ask for evidence of sickness and demand

holiday is booked?• Employee who gives good reason for absence

but who turns up on picket line or associates himself with strike can be treated as striking

Strikes and dismissal of staff

• Employers can dismiss workers who are participating in unofficial industrial action ie not authorised by TU – a ‘wildcat strike’.

• Employees are protected if taking part in official, protected industrial action

• If the action is official, but unprotected, they will have an unfair dismissal claim if there is dismissal followed by ‘selective re-engagement’.

Trade Union Reps

ROLE OF TRADE UNION REPRESENTATIVES

NB in general these rights apply to the representatives of recognised trade unions (save for right to be accompanied, where an employee can always bring along a TU rep in place of a colleague)

Right to be accompanied

• Colleague or accredited trade union rep• Right to speak• Right to ask questions• No right to answer questions• Can seek adjournment for up to 5 days

Time off for trade union activities: representatives

This falls into a number of different categories:• Union representatives – right to reasonable time

off to carry out union duties • Health and Safety representatives – right to time

off to carry out their functions • Union Learning representatives – right to

reasonable time off in relation to training functionsThese are rights to paid time off, and include the right to attend relevant training

Time off for trade union activities: members

Members of recognised trade unions are entitled to unpaid time off to participate in trade union activities eg• Attending workplace meetings• Voting in TU elections• Meeting full time officers

Providing facilities

ACAS code of practice recommends the provision of facilities for trade union activities eg meeting rooms; noticeboards; confidential areas for discussions with individuals; telephone an email; and in some cases dedicated office space

Deciding on what is reasonable time off

• Use of agreements• ACAS Code of Practice

Detriment and dismissal

A worker has the right not to be subjected to any detriment:• on grounds of union membership (or non-

membership) • on grounds that he was taking part in trade

union activities at an appropriate timeA dismissal on one of these grounds will be automatically unfair.