by Andy Williams and William Rollin, Charles Russell LLP, Solicitors
When unions strike, businesses and consumers suffer. Given growing unionisation and increasing union militancy, the business community is gearing up to score early goals against the unions. In the recent past, injunctions to prevent strikes have been used more regularly than ever before. This article sets out what employers can do to protect themselves during – what some pundits fear could be – the forthcoming summer of discontent.
Procedurally, trade unions can only call a legitimate strike if they satisfy a complex web of technical and procedural requirements. Failure to get the procedure right offers the employer the chance to apply to the Court for an injunction, to prevent the strike from taking place.
In short, the union must properly ballot the relevant
members – but nobody else. Network Rail prevented the RMT’s intended signal-worker strike when Network Rail showed that the RMT had erroneously sent ballot papers to mothballed signal stations. Likewise, British Airways pre-empted the Christmas cabin crew strike because Unite had sent out ballot papers to individuals no longer employed by BA.
The union must give seven days’ notice of the ballot, and copy the voting papers to the employer three days before the ballot. The ballot must be conducted according to strict rules and the result must be communicated to the employer as soon as reasonably practical. (In one 2009 case, a delay of 24 hours in notifying the employer of the result was sufficient grounds for the employer to obtain an injunction.)
The union must also confirm the number and category of employees to be called out. In another 2009 case, the Court ruled that the union must give adequate information — holding in that case that the union should have broken down “engineers and technicians” into six relevant categories.
Injunctions Employers facing a strike should first alert their legal teams. The union’s compliance with regulations must be assessed. Where a breach is found, an injunction application must be made urgently. The application will invariably be for an interim injunction (pending a final hearing, which often does not materialise). The employer will be expected to give a cross-undertaking in damages, notionally to compensate the union if an injunction, once granted, proves unfounded. This is seldom a substantial liability in contrast to what the employer stands to lose by allowing the strike to go ahead.
The employer inevitably incurs legal costs, publicity and loss of management time in obtaining an injunction. After all that, the union is nonetheless at liberty to get itself organised and come back for another go. Network Rail may have put one past Bob Crow — but, like Arnie – he promises he’ll be back…
So what are the benefits of seeking an injunction? One of the main benefits is that the business shows its commitment to protect consumers. An injunction can prevent a strike at a critical juncture — for example BA staved off the symbolic Christmas strike. An injunction can also buy valuable time, allowing the employer to plan a response to the dispute — whether by negotiation, or by rebalancing the workforce to minimise the eventual impact of a delayed strike.
Injunctions are potentially a strong defence for an employer and can fend off industrial action — but only where the union’s administration has failed.