We have recently been negotiating as part of our annual pay review but this year, it looks like there will be a failure to agree and we suspect that the Union are likely to ballot for industrial action. Although we recognise a trade union, trade union membership is low. If there is support for industrial action, does the protection that applies to union members going on strike, also apply to non-union members?
Provided that the industrial action itself is protected because the Union did everything correctly in relation to the balloting provisions etc, then a non union employee who takes part in industrial action has the same employment law protections in relation to industrial action as his unionised colleagues. So imagine the Union has complied with all the balloting provisions, it has given you notice of its intention to take continuous industrial action ( go on strike ) every Friday for the next 8 weeks then you cannot fairly dismiss any of the staff at that establishment for taking part in industrial action, whether they are union members of non-union members. If the action was to last more than 12 weeks then, provided you have tried to resolve the dispute, it may be possible to dismiss all the strikers but you cannot cherry pick the ones you want to fire – it has to be all or nothing. Before going down this route we would advise that you speak with your HR Rely advisor.
Following unsuccessful pay negotiations, our shop-floor employees have been balloted for industrial action and we have now received notification that they will be engaging in a series of one day strikes commencing next week. This isn’t great timing as we have a contract for a key client that needs to be out in a month’s time. We really need all hands on deck. Are we ok to get agency workers in to cover for employees who are on strike?
Yes you can - following a relatively recent change in the law. For many years, Regulation 7 of the Conduct of Employment Agencies and Businesses Regulations 2003 made it a criminal offence for employment agencies to provide workers to cover either the work otherwise done by striking employees and/or the work done by other employees the employer has moved to carry out the striking employees work.
However, this rule was revoked with effect from 21 July 2022, meaning that employers are now no longer restricted from engaging agency staff to cover for striking workers when industrial action is taking place.
As well as engaging agency workers, there are other solutions that you may want to try to plug staffing gaps. For example, you might wish to increase overtime opportunities for those wishing to continue working; consider moving employees from other areas to cover for the striking workers; or recruit temporary employees on to your payroll to cover the work (although this will often be impractical)
Our business recognises one trade union, but a worker has asked to be accompanied by an official of another, different union and an upcoming disciplinary hearing. Must we allow this?
Yes. There is no requirement in the relevant legislation (s.10 of the Employment Relations Act 1999) that a trade union official who accompanies a worker at a disciplinary or grievance hearing must be from a trade union recognised by the employer. The official must simply be either a trade union official employed by the union, or a 'lay' trade union official whom the union has reasonably certified in writing as having the necessary experience or training to act as a companion at disciplinary or grievance hearings. If the worker is a member of a non-recognised trade union, the worker may therefore ask to be accompanied by a trade union official from that trade union. While there is no requirement in the legislation for the worker to be a member of a relevant trade union to be accompanied by one of its officials, in practice trade unions rarely support workers who are not their members.
Can a job applicant be rejected for employment on the grounds that they are, or are not, a member of a trade union?
No. Under S137(1) of the Trade Union and Labour Relations Act 1992 (TULRCA) it is unlawful for an employer to refuse employment on the grounds that the job applicant is, or is not, a member of a trade union; is unwilling to accept a requirement to join or leave a particular trade union; or is unwilling to make payments, or have pay deducted, for union subscription/membership fees. The Employment Relations Act 1999 (Blacklists) Regulations 2010 make it unlawful to blacklist workers from employment as a result of their current or past trade union membership or activities.
What activities are trade union members allowed time off to take part in?
Union members are entitled to 'reasonable' time off to take part in any trade union activity, provided that the activity itself does not constitute industrial action. For example, a union member is entitled to take time off to vote on strike action, but not to take part in the strike itself.
It is important to note that Union 'activities' are not the same as union 'duties'. Different rights and obligations apply under the relevant legislation; Trade Union and Labour Relations Act 1992 (TULRCA). 'Activities' are actions taken by members in relation to their union, for example voting in elections, meeting with union representatives and attending workplace meetings. 'Duties' are tasks undertaken by union representatives on behalf of their members, for example negotiating with the employer or organising elections. A union member is also entitled to reasonable time off for accessing the services of union learning representatives. Note that the trade union must be recognised by the employer for these rights to apply.