Upcoming College Strikes - What Further Education Colleges Need to Know
On Wednesday 24 February 2016, lecturers and support staff working in further education colleges have been called by Unison and the University and Colleges Union to participate in strike action in relation to a dispute over pay.
The strike follows industrial action taken by UCU members last November, which saw over 200 colleges face disruption and uncertainty in relation to staff numbers on the day of the strike.
Next Wednesday's strike is likely to be even harder felt by the sector, as staff protest against the implementation of a pay freeze in circumstances where the unions claim that their members have already experienced a substantial real-terms reduction in pay over the past five years.
In response, the Association of Colleges highlights that the recommended pay freeze is a reflection of 'the stringent financial circumstances in the sector and the significant external pressures on college pay bills'.
Around 66% of the Unison members who voted in the ballot on industrial action are in support of the strike. This level of backing is likely to translate into significant disruption for FE colleges.
So what do you need to know about strike action?
- Notice of ballots and strike action
- Do we have to pay employees who go on strike?
- Can we dismiss the strikers?
- Can we sue the unions for the financial cost?
- How much can we deduct from employees' wages for taking strike action?
- Can employees who are not members of the union go on strike?
- Can we ask staff about their intentions for the proposed strike action?
- Can we arrange for existing staff who choose not to strike to cover for those that do opt to strike?
- Can we use agency staff to cover?
- Does that mean that I cannot ask agency staff who I already employ to come in on that day?
- Can I employ more people directly?
- What if staff call in sick but I believe that they are on strike?
- What are the rules on picketing?
- Don’t inflame the situation
1. Notice of Ballots and Strike Action
Industrial action is only legal for unions if they comply with complex balloting and notice provisions. In essence, the ballot should be of members who might be called out and should be accurate.
Each college should have received:
- a notice of intention to ballot 7 days before the ballot
- a copy of the ballot paper 3 days before
- notification of the outcome of the ballot as soon as reasonably practicable
- a notice of the intended industrial action at least 7 days before the strike is due to take place
It is not as easy as it used to be for employers to stop or delay strikes on technical grounds, but if you think that there might be a defect you should take expert advice.
2. Do we have to pay employees who go on strike?
No. An employee is in breach of their contract of employment if they do not work, and they are not entitled to be paid.
3. Can we dismiss the strikers?
No, not in the first 12 weeks of official industrial action. Although the employees are in breach of their contract, they are protected from dismissal.
4. Can we sue the unions for the financial cost?
No. If the unions have complied with the law in relation to the ballot and notice requirements, they have immunity from action.
5. How much can we deduct from employees' wages for taking strike action?
You can deduct a day's pay for a day's strike. A day's pay will often be defined in the contract of employment. If the contract does not define a day's pay then, if employees are paid a salary, this is deemed to accrue from day to day. If the contract specifies normal working hours and pay is calculated by the hour, then the deduction will be determined by reference to the hours lost.
6. Can employees who are not members of the union go on strike?
Yes. Protection from dismissal extends to non-union members. Such staff can participate in any strike action but would also lose a day's pay for each day of strike action. However, members of other unions that are not supporting the strike will not be afforded the same protection as striking unions and non-union members.
7. Can we ask staff about their intentions for the proposed strike action?
You are not entitled to subject those staff who intend to strike to a detriment. However, this does not preclude you from communicating with the relevant staff as to their intentions. We would advise that this exercise is carried out in the spirit of making enquiries to make plans to deal with absences. We appreciate that there are clear health, safety and safeguarding issues involved in the decision to open if there is an inadequate ratio of staff.
8. Can we arrange for existing staff who choose not to strike to cover for those that do opt to strike?
Yes. Leaving aside the fact that replacing workers may serve to inflame the existing dispute, there is no legal restriction on employers reallocating the duties of their own directly employed staff.
9. Can we use agency staff to cover?
No. Any agency supplying staff to cover the normal duties carried out by a striking employee or to cover for an employee who is moved to cover striking staff is committing a criminal offence.
10. Does that mean that I cannot ask agency staff who I already employ to come in on that day?
No. If you are already using agency staff, they can come in and do the normal duties that they were already engaged to undertake.
11. Can I employ more people directly?
Yes, but they cannot be through an agency.
12. What if staff call in sick but I believe that they are on strike?
If you have credible evidence or can obtain credible evidence, then normal disciplinary proceedings can commence. If you fail to pay sick pay on the basis of an erroneous belief, then you are in danger of a constructive dismissal claim and/or an unlawful deduction of wages claim.
If an employee calls in sick then you can, of course, replace that employee with an agency worker as they are sick and not striking. Make sure you keep a careful record.
13. What are the rules on picketing?
Picketing is only lawful if it is carried out peacefully at the employees' own place of work during industrial action, with the intention of persuading others not to work during the strike, or spreading information about the dispute. Intimidation or threatening behaviour towards those wishing to cross the picket line or continuing to work during the strike is unlawful.
14. Don’t Inflame the Situation
Our final piece of advice is that all industrial disputes have to end. They all have to be solved in some way or another. Experience has shown us that the best results for employers are normally achieved by firm but fair management, which is careful not to increase the temperature of any dispute.