In the current climate, change to working conditions, hours and relationships is inevitable. The end of Furlough and other business supports could bring turbulent times. Contracts of employment can be successfully varied using the correct process and sufficient consultation, but the employee strikes at leading UK bakery, Hovis are a timely reminder of the challenges that lie ahead for employers.

‘Flour’ to the People – employee rights

The strike at the Hovis bakery plant in South Belfast began just over a week ago. Employees are seeking pay parity with Hovis employees in Great Britain. The strike, supported by Unite the union, has disrupted supply in both Northern Ireland and the Republic of Ireland. Strike action would have significant consequences for any business. Here’s a reminder of the legal impact.

Strikes are a form of industrial action where employees stop carrying out their day-to-day working activities as a form of protest. Even where strike has been voted for, employees do not have to take part in industrial action as there is no positive legal right to strike, but they cannot be disciplined if they do take part.  The strike action is official industrial action when the employees are members of a trade union, and the action is authorised by the union. An employee can take part in an official industrial action that has been authorised even if they are not themselves a trade union member. An action that has not been authorised by the union is known as an unofficial industrial action. The difference is important.

Striking can be a breach of contract by the employee and affect their employment rights such as the right to redundancy pay or entitlement to notice if they are dismissed for striking. Employers do not have to pay for the work missed during the strike and employees cannot bring claims for unlawful deduction from wages if they take part in industrial action and the reason for the deduction is the action.

The provisions relating to strike action are mostly contained in the Trade Union and Labour Relations (Northern Ireland) Order 1995. However, under the Employment Rights (Northern Ireland) Order 1996 unfair dismissals include cases where an employee’s employment is terminated due to employees taking part in trade union activities, including strike action. This protection will also extend to employees who are not members of any union but who take part in official strike action. In order for an employee to be able to rely on this protection, one of these conditions must be fulfilled:

1. The dismissal must have taken place within 12 weeks of the start of the protected strike; or
   
   
2. The dismissal took place more than 12 weeks after the start of the protected strike, but the employee had ceased taking part in the strike within the 12-week period; or
   
   
3. The dismissal took place more than 12 weeks after the start of the protected strike, the employee had continued to take part in that strike, but the employer had failed to take such procedural steps as would have been reasonable to resolve the dispute.

If the employee was participating in an unofficial industrial action, the employee will not be afforded the protection against unfair dismissal.

What employers can do to ‘strike’ back

When a strike situation arises, it is important for employers to be aware of what they can do to protect their business, all whilst avoiding any unwanted legal action.

• Withholding pay: where the employee is not working due to strike action the employer is able to withhold pay, either wholly or in part. 

• Agency staff: Employers cannot use agency staff to perform the duties of those employees on strike, or to cover the duties of any other worker. However, they can use their internal bank of staff who are not striking to cover the gaps in work of the employees who are on strike. 

• Dismissal: Employers may dismiss employees who take part in an unofficial strike, subject to following a fair process for dismissal. 

• Injunction: the relevant union must ensure that it has correctly balloted its members prior to strike action, otherwise it is unlawful. The main remedy for businesses threatened with an unlawful industrial action is to apply to the High Court for an interim injunction against the trade union. Although the court cannot compel the employees to perform their employment contracts or attend work, a declaration that the action is unlawful opens the employees to the risk of dismissal if they proceed. This is usually enough to prevent the strike (see British Airways Plc v Unite the Union [2009] EWHC 3541 (QB) (17 December 2009) although this injunction was later appealed).

Of course, the answer is to avoid strike as far as possible, through meaningful consultation, but that is not always possible. Although strike action is not that common, unionised employers shouldundertake some form of risk planning at the start of any significant variation process, to mitigate the loss and disruption to business.