Additional Public Sector Strikes Action Q&A

Employment Law & HR update 25/11/2011

With it looking increasingly likely that public sector strikes will go ahead across the whole of Great Britain next Wednesday (please see our previous news story) , our Employment Law & HR Advice team answer more of your questions, this time focussing on businesses and organisations directly affected by strike action by their own workers.

If your business is not itself directly affected by union action, bear in mind that your staff may be affected - for example, if they have childcare responsibilities.

Do I need to pay employees who strike?

No. Employees who are on strike are not entitled to pay for any period that they are on strike.

If I close my business because we don’t have enough staff to cover our work, do I need to pay employees who are not striking?

Unless you have a contractual right to temporarily lay off staff without pay, your employees are entitled to be paid if they are available for work. If you have a contractual right to lay off employees, this period could be unpaid. Where lay off is as a result of industrial action in your workplace, employees are not entitled to receive a guarantee payment, even if they are not participating in strike action themselves.

Can non-union members take part in strike action?

Yes, as long as the strike at your workplace has been lawfully organised. Where an employee is a non-union member and takes part in the strike (eg by refusing to cross the picket line and come to work on the strike day), will have the same protection as union members.

Can I ask employees if they are intending to take strike action?

Employees are not obliged to tell their employer that they will be taking strike action. Although you are not specifically restricted from asking employees about their intentions, you must ensure that there is no harassment or coercion of employees. As the intended effect of the strike is to create disruption, it is unlikely that employees will volunteer this information.

What should we do if employees claim that they are sick during a strike period?

When you are aware of a period of intended strike action, you may wish to advise employees in advance that any sickness absence beginning during this strike period will be treated as a period of industrial action unless the employee can provide medical evidence of sickness during this period.

Can we hire agency staff to cover during strike action?

If you already hire agency workers, you can continue to use them for the work that you hired them to carry out. You must not specifically hire agency workers to cover for striking employees and it is a criminal offence for an agency to supply workers for this reason.

Where can employees picket?

Pickets can be formed on a public highway outside the workplace. There is no right to picket on the employers premises and employees will usually picket near a workplace exit or entrance.

How many employees can form a picket line?

Although there is no particular legal restriction, the Government’s Code of Practice recommends a maximum of six pickets at any entrance or exit to a workplace. The purpose of the picket is to enable peaceful persuasion to support the action, not to create public disorder or nuisance.

What can I do if my employees are unable to come to work because of strike action occurring elsewhere?

It is possible that some staff could be affected by strike action, even if they are not taking action themselves. For example, school closures are likely to create childcare difficulties for some working parents if they have no alternative childcare arrangements. It is advisable to speak to your staff in advance to try to ensure that adequate arrangements are in place. If they need time off work, you may wish to allow them to use annual leave or allow unpaid leave. Employees who genuinely need to take time off to care for dependents may have a statutory right to take unpaid leave from work.

My employee has asked to bring her child to work. Should I allow this?

Employers are not obliged to allow this. You may however wish to consider any options that are available to you to allow work to continue with minimal disruption to your business. If you are contemplating allowing this, you should consider any health and safety risks and how else this might affect your business. Alternatively, you may wish to consider if the employee could temporarily work from home.

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