With the proposed public sector strikes planned to go ahead tomorrow, the Employment Advice Line at Croner has had an increase in calls from concerned employers about how to deal with strikes. The following guidance may be useful for employers.
Is the strike official; it is supported by the TUC?
At the time of writing, it appears that no legal challenges have been made in the high court alleging any ballot irregularities and no notices of repudiation have been issued. That means striking employees are protected whether they are union members or not. Similarly employees who are members of unions which have not balloted for action, but who as individuals, decide not to cross picket lines, should not be subject to disciplinary action.
Do we have to pay employees who are taking part in the strike?
No, while on strike, employees are not performing under the terms of their contracts of employment and therefore no payment will be due from the employer.
Do we have to close down our place of work?
No, the decision is yours. If you do decide to open your place of work you should clearly inform your employees that you will be open should they decide that they do not wish to participate in the strike. If employees attend work, then they are of course entitled to be paid for the time worked. If they do not attend work, then it should be treated as authorised unpaid leave. You should not take disciplinary action against those who do not attend for work. It is advisable to keep a clear note of who has and who hasn't attended work, as this will avoid any disputes at a later stage. If you decide to close the workplace for the day, you would be preventing employees who may be ready willing and able to attend work on that day from doing so. Consequently, in the absence of a clearly worded contractual lay off clause, you would be obliged to pay your employees for this day.
What about employees who call in sick on that day?
You should inform your employees, in advance of the strike that calling in sick on that day will not be accepted without evidence of genuine illness, [e.g. a certificate from their doctor etc.]. You can inform them that if such evidence is not provided then the absence may be treated as unauthorised and they may not be eligible for sick pay. This should discourage people who are taking part in the strike from calling in sick in an attempt to get paid.
Do we have to agree a request for holiday on that day?
No. Employers are entitled to refuse an employees request for holiday based upon the needs of the business. If an employee's request for holiday is refused, you should clearly inform them of the refusal and the requirement for them to attend work and outline the possible consequences should they not do so.
Can we use Agency Temps to cover strikers?
Employers sometimes seek temporary staff to replace employees taking part in an official strike. Employment businesses (Agencies) may not provide employers with workers in these circumstances, nor may they provide an employer with workers to cover the work of someone who has been transferred by the employer to perform the duties of an employee who is on strike or taking industrial action. There are, however, no restrictions on employment businesses supplying staff to replace employees involved in unofficial strike action.
Do employees have to tell us in advance whether or not they will be attending work or striking?
There is no legal requirement on an employee to confirm in advance whether they will be attending or striking.
What happens if one of my employees can't come to work because their child's school has closed and they need to look after them?
Then it could be emergency time off for dependents – which is unpaid. However, the employees would be expected to follow the correct absence reporting procedure. The employer may exercise their discretion to allow requests for annual leave or to allow TOIL – but I wouldn't advise that employers publish this fact in advance (as they may get everyone asking) and they must act consistently towards all employees.
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