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Brodies employment law expert provides 'top ten tips' for employers to minimise strike disruption

On the eve on what has been billed as the largest public sector walk-out since the Great Strike of 1926, employment law specialist Paul McMahon of Brodies LLP, has produced a ten point guide for employers on how best to manage strike action and minimise disruption.

The government and the public sector unions are at loggerheads in relation to the proposals around reforming public sector pensions and it is anticipated that about 3m public sector staff in the UK – and some 300,000 in Scotland - will take industrial action tomorrow.

From an employment law perspective, it is not entirely surprising that strike action appears to be how the unions and employees are seeking to block these changes. This is because, in all but the rarest of cases, pensions schemes - and what employees receive under them in the future - can be amended and revised by employers without employees' agreement. This means that employees cannot take claims to the Employment Tribunal claiming breach of contract but they can take industrial action to try and force a rethink.

Understandably, employers are concerned about the potential disruption to their businesses and services that strike action may cause. Many are unclear about how best to manage the situation. It is not only the unions who have to contend with the myriad complex regulations and procedural requirements surrounding industrial action.

By way of guidance, Paul has produced ten tips for employers on how to manage the strike action and minimise disruption:

1. Ensure that administrative arrangements are in place for the reporting and recording of participants in strike action. This should be handled sensitively but it is acceptable to seek the likely response to a call for strike action so that contingency plans can be made

2. Communicate with service users, stakeholders and/or suppliers to inform them of the dispute and its likely effect

3. There is no requirement to pay employees participating in strike action for the period during which they are not working. However, take care not to deduct payment from employees who are absent on the day of the strikes for legitimate reasons, such as sickness or holiday

4. Employees could be advised in advance of the strike action that if they are absent due to illness on the day of the strike they are required to provide a medical certificate (with the employer meeting any required costs) and that failure to provide a certificate may result in pay being withheld

5. Employees should not be disciplined for taking part in lawful industrial action. However, the normal standards of conduct apply and disciplinary action can be considered if employees act inappropriately, for example, by interfering with equipment or indulging in threatening behaviour

6. Employees who are not taking part in strike action can be reasonably required to redeploy and undertake the duties of those who are on strike if this falls within their contractual duties. Often the terms of employment contracts relating duties allow the employer to require employees to carry out different or additional duties from time or time

7. Employment agencies are prevented from supplying temporary workers to cover for employees who are on strike, or to fill in for employees who are redeployed to cover for employees on strike. Employers who engage agency workers could be liable for aiding and abetting. When the strike has ended, agency workers can be used to help clear any backlog

8. Employers can use existing casual workers, engage temporary workers directly, or outsource service provision to external contractors to provide cover during the strikes but if doing so employers should proceed with care and seek advice.

9. Employers should avoid dismissing employees for participating in lawful industrial action. In some circumstances employees who are dismissed for participating in lawful industrial action would be able to claim that their dismissal was automatically unfair

10. Make sure you have an employee relations strategy in place. 30 November is unlikely to be a one-off and dealing with the strikes in a measured way is more likely to ensure a smooth return to work and reduce the risk of lingering animosity and support for further action

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