Union relations, strikes and work to rule

What you can and can’t do about it.

Heather Mitchell - Associate

HR and employment conference for

school leaders 2015

#BJHR15

Managing union relations

Day to day relations

Day to day relations

Statutory right to be accompanied at meetings

• grievances

• disciplinary – any hearing where a warning

might be given.

Case study – the postponement game

Sadie has been off sick since she was invited to a

disciplinary hearing on 1 October (the allegation is that

she assisted in exam fraud). You agreed to postpone

the hearing whilst you sought OH advice.

OH has confirmed that Sadie is fit to attend the

hearing which has been rescheduled for 16 October.

Her union rep has just told you that he isn't available

on 16th and you have to move it to after half term.

Do you have to?

Postponing hearings

Employment Relations Act 1999

s10 Right to be accompanied

(4) If -

(a) a worker has a right under this section to be accompanied at a

hearing.

(b) his chosen companion will not be available at the time proposed

for the hearing by the employer, and

(c) the worker proposes an alternative time which satisfies

subsection (5)*

The employer must postpone the hearing to the time proposed by the

worker.

Postponing hearings

(5)* An alternative time must –

(a) be reasonable, and

(b)[be within 5 days of the originally proposed date]

Conduct at hearings

“The companion should be allowed to address the hearing in order

to:

• put the worker’s case

• sum up the worker’s case

• respond on the worker’s behalf to any view expressed at the

hearing.

The employer is,however, not legally required to permit the

companion to answer questions on the worker’s behalf, or to

address the hearing if the worker does not wish it, or to prevent

the employer from explaining their case.”

Discipline and Grievances at work – the ACAS guide

Policies

Consultation vs negotiation?

• legal minimum

• contractual?

• good practice

• policies where disciplinary action is an

outcome?

Industrial action

Types of industrial action

Strike

Action short of strike:

• work to rule

• lock in

• overtime ban

• go slow

• sit in.

Can I get an injunction to stop it?

Only if one of the requirement have been breached:

• valid trade dispute

• properly organised ballot

• notification.

Or if it is a ‘prohibited industrial action’

What is a ‘trade dispute’?

A dispute between workers and their employer which relates wholly

or mainly to any of:

• terms and conditions of employment

• the physical working conditions of any workers

• engagement or non-engagement of one or more workers

• suspension of one or more workers

• termination of employment of one or more workers

• allocation of work or duties between workers or groups of workers

• disciplinary matters

• membership or non-membership of a trade union by a worker

• facilities for union officials

• machinery (that is, the infrastructure and process of) negotiation or consultation,

or other procedures, relating to the above (including union recognition and union

representation rights for a worker).

Timescales

Why does there need to be a valid ballot?

"An employee has no right to complain of

unfair dismissal if at the time of dismissal

he was taking part in an unofficial strike or

other unofficial industrial action.”

s237 Trade Union and Labour Relations (Consolidation) Act 1992

Consequence of a valid ballot

Protection against dismissal

However, industrial action is still likely to be a

breach of contract, so pay can be deducted.

• strike day (burgundy book - 1/365)

• work to rule?

Work to rule – is it a breach of contract?

Case study – pay deductions

Catherine refuses to participate in peer observation. This is in

breach of STPCD:

63.11 requiring the teacher to contribute to the professional

development of other teachers

63.13 requiring her to participate in the review of her own

performance

61.16 requiring teachers to collaborate with colleagues

The head writes to her with a warning that if she continues to

refuse then a 10% of her pay will be deducted on an ongoing

basis to reflect partial performance.

She continues to refuse so the deduction is made.

Practical guidance when a strike is threatened

If possible to seek to resolve (i.e. not a national

strike)

Two pronged attack:

• make reasonable attempts at negotiation with

Union reps

• separately, seek to get staff on side.

Weather the storm?

And once a strike is going ahead

“In the event of strike action

at a school, the Department

for Education expects the

head teacher to take all

reasonable steps to keep the

school open for as many

pupils as possible”

DfE advice October 2014

And once a strike is going ahead - FAQs

Can I ask staff if they are going to strike?

Can I bring in agency staff?

What are the rules on picketing?

What can I do about staff intimidating colleagues?

www.education-advisors.com

Talk to us…

Heather Mitchell | 0207 871 8511

heather.mitchell@brownejacobson.com

Please note

The information contained in these notes is based on the position at

October 2015. It does, of course, only represent a summary of the

subject matter covered and is not intended to be a substitute for

detailed advice. If you would like to discuss any of the matters

covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2015. Browne Jacobson LLP is a limited

liability partnership.