In any strike action, let alone one that
the BBC say has been the longest strike
action since the 1960s, a few “obvious”
employment issues spring to mind:
namely the rights of those employees
striking and the rights and actions
available to their employer.
For those not aware of the background
to this 10 month dispute, the strike has
been called in response Southern Rail’s
plans to remove conductors from some
services and instead introduce driveronly operation. The employees striking
are members of the Rail Maritime
and Transport Union (RMT) and their
employer is Govia Thameslink Railway
(Southern’s owner).
The Court of Appeal has held that a
strike is “a concerted stoppage of work
by men done with a view to improving
their wages or conditions or giving vent
to a grievance or making a protest about
something or other or sympathising with
other workmen in such endeavors”.
Going on strike will almost always
amount to a breach of contract by the
employee, as it involves the unilateral
withdrawal of the employee’s labour.
Having said this, legal remedies against
employees are limited and under the
Trade Union and Labour Relations
(Consolidation) Act of 1992 (TULRCA
1992) a court cannot order an employee
to work or even attend the work place.
The employer can, however, legitimately
withhold all or part of the employee’s
pay for their breach of contract and,
unless the action is “protected” (i.e.
called by a union that has complied
with the necessary ballot and
notification rules).
The employer may also dismiss some
or all of the striking employees without
notice but it should be noted though
that dismissal of an employee who
takes part in a protected strike would
amount to an unfair dismissal and thus
give rise to claims by the employee for
unfair dismissal under section 238A
of TULRCA 1992. Strike action may
also affect an employee’s continuity
of employment and their right to
redundancy pay.
Any Trade Union calling a strike that
involves a breach of the employee’s
contract could find themselves liable for
the tort of inducing a breach of contract.
For a Trade Union to be immune from
any action under the law of torts
they have to meet all of the following
conditions:
if their legal challenge is upheld RMT could find
themselves facing a request for damages in respect
of strike action that has already occurred and
employees could find that they can be dismissed as
a result of their participation in the strike
• That the industrial action was taken
“in contemplation or furtherance of a
trade dispute
• That it is not being taken for a
prohibited purpose, such as to enforce
a “closed shop” or to protest at the
dismissal of workers taking unofficial
industrial action
• That it does not amount to a
secondary action or unlawful picketing
• That the action has the support of
a properly organised ballot of union
members and the union has complied
with the notification requirements.
The ballot and notification requirements
were introduced by the Conservative
Party in the early 1990s and are still
in force. Under sections 226-234A
TULRCA 1992 the union must organise
a ballot and send a notice of it (no later
than seven days before the ballot is due
to take place) to the employer of any
employees who are entitled to vote.
The ballot must then be held in
accordance with the balloting rules and
the union must take reasonable steps
to announce the result of the ballot as
soon as reasonably practicable to both
the union members and their respective
employers.
If an independent scrutineer is required
for the ballot they must issue their report
on the conduct of the ballot within four
weeks of it taking place and any notice
of industrial action must be served on
the relevant employers at least seven
days before the start of the industrial
action. If, as in this strike action, the
strike is to be on several dates, then the
union must give at least seven days’
notice of each day when the industrial
action will take place. They can be sent
out in one notice or several, provided
that they specify the dates of each bout.
Finally, the strike must be started within
four weeks of the date the ballot closed;
otherwise the result is treated as “stale”.
The union a nd the employer may agree
to extend this period for up to eight
weeks, and this can be useful when
further time may enable the dispute to
be resolved.
The need for a properly organised
ballot of union members has become
particularly relevant to this most recent
strike action as it was announced in
October 2016 that Govia had issued
a legal challenge in relation to the
ballot that had been carried out. In a
letter to the General Secretary of RMT
published on Southern Rail’s website
Govia advised that “plainly the Ballot is
defective and industrial action taken in
reliance upon the Ballot is unlawful”.
It is not known which part of the ballot
process Govia say has not been
followed and which they say makes
the ballot and resulting strike unlawful,
but if their legal challenge is upheld
RMT could find themselves facing
a request for damages in respect of
strike action that has already occurred
and employees could find that they
can be dismissed as a result of their
participation in the strike as they will be
without the safety of the strike being
deemed a “protected” action.
It was however announced on 26
October 2016 that a further ballot will
take place with both members of RMT
and the main train driver’s union, Aslef,
being asked to vote on further strikes.
This raises the possibility of joint strikes
by members of both unions happening
in December of this year.
Given the recent legal challenge, it will
be a surprise if RMT are not extremely
diligent as to the requirements of this
next ballot so anyone hoping for a swift
end to chaos caused by the rail strikes
may well be bitterly disappointed.
By Jenny Crocker
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