Southern fail strikes again | Mayo Wynne Baxter
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Southern fail strikes again

If you live in the South East of England then chances are you or someone you know have had a journey delayed or cancelled by the recent train strikes. It was during such a delay, whilst waiting on the station platform for longer than I had planned, that I found myself considering which employment laws and rights are relevant when strike action occurs.  (Apparently, this Trainee Solicitor has nothing else to think of in such situations.)

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 driver-only 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 endeavours”.

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:

  • 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 and 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.

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