1. NHS NORTH WEST HRD FORUM Tuesday 22 March 2011 There May Be Trouble Ahead….! David Fagan, Mace & Jones e-mail:david.fagan@maceandjones.co.uk

2. Context “We will unite and fight back against the cuts – the future of our public services is at stake and I will not let this Government set fire to them” (Reg Prentice, UNISON) “The phoney war is over.” (Brendan Barber, TUC)

3. Basic Principles (1) Three parties involved : –The Employer –The Employee –The Trade Union (TU)

4. Basic Principles (2) Industrial Action (IA) will almost always involve -a breach of contract by the Employee - a “tort” by the TU But TU’s and staff are protected from the normal legal consequences provided the decision to take IA is reached democratically and the Employer is given fair warning

5. What is “Industrial Action”? No statutory definition Courts have avoided defining -“any concerted action taken in order to put pressure on an employer” -anything done “in contemplation or furtherance of a trade dispute” (S.219 TULR(C)A,1992)

6. What is a “Trade dispute”? A dispute between workers and their employer which relates wholly or mainly to eg :- -terms of conditions of employment -engagement/termination/suspension of workers -allocation of work -discipline -negotiation/consultation machinery (Full list in (S.244 TULR(C)A)

7. Three Kinds of Industrial Action -Unofficial -Official -Protected The further along, the more protection for the TU and the workers.

8. Unofficial Action -Not called by the TU But can become “official” if :- -authorised or endorsed -not repudiated If unofficial: -no liability on the TU -but Employers protected from unfair dismissal claims (unless automatically unfair for specified reasons)

9. Official Action Ie. “authorised or endorsed” by the TU TU liable in tort unless : - “in contemplation” or furtherance of a trade dispute” - not for a prohibited purpose - not secondary action - following a proper ballot - proper notices given (Code of Practice on Industrial Action Ballots & Notice to Employees) So - what is the process?

10. A Load of Ballots! -Secret -Everyone who might be “induced to participate” and no others -Must be “yes/no” question -Ballot paper must warn members of possible consequences -Independent scrutineer (if more than 50 members) -No interference or cost -Result must be announced as soon as reasonably practicable

11. What You Are Entitled To -Notice of the ballot – not less than 7 days before -Copy of the ballot paper – not less than 3 days before -Notification of the Result – as soon as reasonably practicable -A copy of the Scrutineers Report -Notice of IA – not less than 7 days before (each if discontinuous) NB. IA must start within 4 weeks of the ballot but can be extended to 8 weeks by approval

12. Recent Cases (1) BA v Unite (2009) “The Santa Claus Injunction” BA v Unite (2010) Notification of result requirements complied with

13. Recent Cases (2) NURMT v Serco (2011) Inaccurate membership information not fatal Information to employer best tu has is sufficient “de minimis” defence applies to “trifling errors explanation does not need to be bespoke provided not misleading

14. If They Get It Right -IA “Protected” -Union immune from Civil Action -Staff protected from dismissal because took part in the IA for 12 weeks (automatically unfair) -Can dismiss thereafter but only if you have taken “reasonable procedural steps” to resolve the dispute

15. If They Get It Wrong – The Union -IA “official” but not “protected” -Can be sued for damages but award capped (max £250k if 100k members) -Injunction?

16. If They Get It Wrong – The Staff Can dismiss – Probably summarily Protection from unfair dismissal claims unless :- -automatically unfair reason -selective dismissal/re-engagement - dismiss some but not all - dismiss all but offer to re-engage some within 3 months

17. Withholding Pay -No obligation to pay when not working -If “work to rule” does not breach contract cannot withhold but will usually at least breach implied duties of fidelity/good faith -If breach of contract can demand employees comply and pay or “lock out” with no pay -Accept part performance and pay for work done

18. Other Possible Consequences For Staff -May forfeit SRP -Strike breaches continuous employment

19. Replacement Labour -No legal prohibitions but :- -may inflame the situation -beware Reg 7 of the Conduct of Employment Agencies & Employment Business Regulations, 2003 - does not directly affect the employer - criminal offence - aiding and abetting?

20. Picketing Only lawful if :- -By a worker employed by an employer who is party to the dispute, or -An ex-worker dismissed as a result of or where dismissal is one of the reasons for the dispute -In either case at or near his former place of work, or -A TU official representing or accompanying the above -Peaceful (Max 6?) -For the purpose of getting/communicating information or to persuade someone from working Code of Practice on Picketing

21. Mace & Jones David Fagan Mace & Jones Solicitors Drury House, 19 Water Street, Liverpool, L2 0RP Tel: 0151 243 9575 Fax : 0151 243 3339 Email: david.fagan@maceandjones.co.uk david.fagan@maceandjones.co.uk NB. These notes are only a broad statement of general law and are only intended to be a summary of some of the principal legal issues. If you have a specific issue you should take specific legal advice on it and not rely solely upon this note. Copyright Mace & Jones, 22 March 2011