How to avoid an employee strike

According to data from the Office for National Statistics, 273,000 working days were lost last year due to labour disputes, the sixth lowest annual total since records began in 1891. The number of working days lost in the public sector was the lowest since records for public sector strikes began in 1996 and the number of workers involved in labour disputes was the second lowest since those records began in 1893.

These figures might suggest that unions have become less influential. But while union membership has more than halved over the past 40 years, Frank Villeneuve-Smith, a director of transport social enterprise HCT Group, reckons trade unions have a vital role to play in advising employers that are proposing changes to work practices and helping nip potential issues in the bud.

“In some cases, an employee may feel more comfortable approaching their union representative rather than company management if they have a concern, which is clearly preferable to allowing issues to fester and gives the employer an opportunity to resolve issues they might otherwise have been unaware of,” he says. Of course, the relationship between company and union also depends on the union officials involved. Villeneuve-Smith acknowledges that while some see themselves as partners in taking the business forward, others can be confrontational. The latter approach, he says, is rare.

However, David Evans, a member of the workplace mediators panel at In Place of Strife, says that employees expressing a desire to join a union is normally a sign that employee communication has failed and that the level of engagement with the workforce is not high enough. This creates a gap that a union will want to exploit. “It’s quite expensive to belong to a union, so it has to be seen to be achieving more for its membership than would otherwise be the case,” he adds.

In the private sector, where employees feel they are not being treated fairly and have been alienated from their employer, they will usually quit rather than attempt to come together to take industrial action. The company therefore loses the investment it has made in that employee.

One of the weaknesses of the union movement is how it advocates for its members as a priority. This can be an issue where some types of employee are more likely to be union members than others. In the case of HCT Group, for example, drivers are heavily unionised whereas passenger assistants are much less likely to be members of a union.

“When this happens, the union can prioritise the issues facing their members, rather than the workforce as a whole,” says Villeneuve-Smith. “This is not an argument against union recognition, but it is something businesses need to be aware of.”

Despite its healthy relationship with unions, HCT Group has had situations where it has become adversarial and where simple economics has made it impossible for both sides to get what they want, resulting in strike action.

The most notable example of this came in 2009 when Unite called a one-day strike at subsidiary company CT Plus following its rejection of a pay increase.

“The most important thing to remember when industrial action happens is that we will still be colleagues once the action is over,” says Villeneuve-Smith. “We prevented entrenching a ‘them and us’ situation by avoiding emotive language. This was even more important as not all staff supported strike action and wanted to work, which we facilitated.”

The company communicated the fact that only around one in four employees voted in favour of strike action and pointed out that the union had rejected a pay increase of 2.25%, which it described as a generous offer when compared with the pay awards most Londoners had been receiving.

“As a result, when the dispute was resolved, there was no lingering resentment between us, or colleagues who had different views on the union’s decision to call the strike,” he adds.

It is vital to keep lines of communication open and updated suggests Sarah Wrixon, co-founder of Salix & Co, a strategic communications consultancy that works in the health, education and social sectors: “Check with your lawyers, but you can almost certainly communicate more than you think is permissible. And don’t assume the workforce representatives will be keeping people fully informed.”

Wrixon says advising one client to open up communications directly with its workforce shifted the negotiating position in less than two weeks and effected an agreement within three weeks as the workers had no idea what had been turned down by the union on their behalf.

Companies will also lose valuable time and money by not setting initial boundaries, she continues: “Unions and their representatives (whose time is being paid for by the union) won’t mind that a whole day might be set aside when decisions may only be made in the final 10 minutes. A day’s negotiation involving the financial director, head of HR and their wider teams will potentially cost the company thousands of pounds, so allocate a three-hour maximum negotiation period with pre-agreed breaks."

Finally, Wrixon recommends companies familiarise themselves with picket law. “It is not acceptable for employees to be intimidated or for property to be trespassed on,” she concludes.

The number of employment tribunal claims lodged rose by more than 25% in the 12 months to July. While the 2017 removal of the fee required to lodge an employment tribunal claim was undoubtedly a factor in this increase, it also suggests that dispute resolution processes such as mediation are not being fully explored.

Mike Talbot, founder and CEO of UK Mediation, explains that companies have the option of either training internal staff in mediation or (in the case of smaller businesses, which Talbot defines as those with fewer than 500 employees) engaging external experts.

“The three most important factors in the process are voluntariness, confidentiality and impartiality,” he says. “When the mediation is undertaken by someone from within the organisation there can be a perception on the employee side that they are not independent and a concern that the process will not remain confidential, a concern that is sometimes justified.”

The latest biennial mediation audit published by the Centre for Effective Dispute Resolution in July 2018 found that the number of commercial mediations being performed had increased by 20% since 2016. The aggregate settlement rate was 89% (up from 86% in 2016) with 74% of cases achieving settlement on the day of mediation.

“The disputes we get involved in tend to relate to management style or allegations of bullying, harassment, unfair treatment or discrimination rather than financial issues,” adds Talbot. “Where the dispute relates to pay rates or terms and conditions, for example, the company will usually require conciliation services.”

The main difference between conciliation and mediation is that a conciliator will usually present a non-binding settlement proposal; whereas the role of the mediator is to help the parties reach an accord by mutual agreement – leaving the formulation and proposal of any settlement up to the parties involved in the dispute.

However, in some cases parties expect the mediator to make a judgement, which suggests there is still a degree of misunderstanding among employers as to how mediation works.

The Advisory, Conciliation and Arbitration Service (Acas) code of practice does not explicitly recommend mediation, but it stresses the need to try to resolve issues locally. A tribunal will ask what internal steps have been taken to resolve a dispute.

Employers can be penalised where it is found that they have made no effort to find a solution prior to reaching the tribunal stage, with an uplift of up to 25% on any award they pay to a successful claimant. Likewise, a claimant that has been offered informal, in-house remedies and is found to have unreasonably turned them down can have their award reduced by up to 25%.

“In my experience, most issues can be resolved before the tribunal stage,” adds Talbot. “Part of the job is to help people back down from an unreasonable position or get out of a corner they have painted themselves into with dignity, which we do by talking to both sides individually as well as collectively.

“These situations arise where common sense has been abandoned or where each side has incorrectly inferred the other side’s motives.”

Felicity Steadman is a dispute resolution professional who has worked as an independent mediator since 1989. She observes that the benefits of good employee relations include higher productivity and quality; fewer absences, complaints, grievances and disciplinary infringements; and a reduction in industrial action and employment tribunal claims.

“Management should be trained to conduct difficult conversations, participative meetings and fair processes,” adds Steadman. “When a concern is raised they should pick it up immediately and follow the appropriate policy and procedure, giving feedback on the outcome as soon as possible – there is nothing worse than a festering grievance.”

Evans says companies need to consider all the elements that can make staff feel disengaged, such as performance culture, professional development and remuneration. It is also worth reviewing the incentive structure – where bonuses are only paid to top performers, the company risks disenfranchising the majority of its workforce.

“One of the key factors in positive employee relations is how staff are treated by their line manager,” he adds. “When disputes arise, we often find that if a line manager had simply apologised for their actions or taken remedial action months earlier, the subsequent breakdown in trust would not have occurred.”

Happy employees are more productive, do their best to meet expectations and help a company grow, which translates into more revenue and satisfied customers notes Jane Gilham, head of human resources at mechanical engineering firm Xtrac.

“We encourage open expression of opinions and concerns and recognise the importance of feelings,” she says. “Actively listening to what people are saying is critical. We strive to resolve issues informally and where appropriate will investigate matters thoroughly with clear disciplinary and grievance procedures.”

Stafford Industrial Supplies circulates a monthly feedback form which is actioned at a staff meeting where the points raised and potential solutions are discussed, explains managing director Paul Walters.

“This could be something as simple as introducing a bin-emptying rota or as complicated as an individual not doing their duties correctly and disciplinary action being taken,” he says. “We have very low staff absenteeism rates, although being a small business gives us the opportunity to talk openly as we are working so closely together.”

Stephen Pugh, finance director at brewer Adnams, agrees that if employees are reluctant to speak out, grievances fester and productivity is undermined. “This is about fostering the right culture and trying to ensure that employees feel confident that they will be listened to, even if they bring bad news.”

At Adnams, the CEO conducts regular briefings and question and answer sessions with groups of employees from all parts of the business. The company also has an employee forum with elected representatives from around the organisation to pick up issues that normal reporting channels may miss.

“Points raised with the CEO or at the forum become formal action points that employees can review and see resolved,” adds Pugh. “We use Workplace (a Facebook-linked system) to facilitate staff communication and it seems to work really well. Managers and staff freely post messages and we have never had any need for censorship.”

The first port of call for any company or individual with an interest in workplace relations is Acas, specifically its codes of practice, which provide advice in areas such as disciplinary and grievance processes, disclosure of information to trade unions, entitlements around union membership, settlements and requests for flexible working.

The government website has an extensive section on employment with information on rights and obligations of employers and employees.

Citizens Advice offers guidance on a range of workers’ rights, which although written from an employee perspective can also be helpful to employers wishing to understand potential areas of conflict.

The Chartered Institute of Personnel and Development provides information on employment law issues at work from recruitment and terms and conditions through to redundancy.

• How to avoid an employee strike
  Business & Management Magazine, Issue 279, November 2019

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