Beyond recognition

26 September 2006

Just when the turbulence of the Gate Gourmet industrial dispute is all but forgotten by the public, the Prison Service comes along in its jet stream to remind employers of the need for effective employee relations and planning.

Last week the Prison Officers’ Association sanctioned the refusal by some officers in Birmingham to work extra hours, and had advised other members at the 152 prisons across the UK to follow suit. This week, prison officers had been poised to strike in what would have been their first national strike in almost 90 years. Fortunately, all action has now been halted following peace talks with the Government.

Industrial action may not be as prevalent as it was in the 80’s, but it does still happen, and what’s more it could happen in your organisation! According to figures published by the DTI, an estimated 29% of all employees are members of a trade union. The public sector is more likely to be affected with 3 out of 5 employees belonging to a union, compared to only 1 in 3 employees in the private sector. However, as public services are outsourced, unionised workforces become private sector and recognition of unions usually carries over to the new employer.

You may not currently recognise a trade union but you can still be at risk under the statutory recognition procedure, if you have more than 20 people working for you. The Central Arbitration Committee (CAC) who oversees the statutory procedure for the recognition of independent trade unions received 58 applications in the 12 months ending 31 March 2006.

Put simply, an application for recognition can be made by a union, or two unions acting jointly, who believe they have the support of at least 10% of a group of workers in a particular bargaining unit. The bargaining unit does not need to consist of the entire workforce and can be a distinct part of the business or work type. If the employer and union(s) fail to reach agreement the CAC has the power to impose compulsory recognition where at least 50% of the bargaining unit are members of the trade union(s) in question.

Industrial action can take many forms including strikes, lockouts, work to rule or overtime bans and can fall into the following categories:

"Protected official action" is action authorised or endorsed by the union where the statutory requirements concerning the balloting of members and the serving of notices are complied with.
"Unprotected official action" is action that has been authorised or endorsed by the union but which did not comply with the rules concerning ballots or notices.
"Unofficial industrial action" is any action taken by workers which has not been authorised or endorsed by the union

It is generally automatically unfair to dismiss an employee for taking part in protected official action. However, if the action was unprotected official action, an employer may fairly dismiss an employee for taking part provided all those who participated are also dismissed. It has to be a case of all or none. An employer can selectively dismiss employees participating in any unofficial action and in this situation the employee loses his right to complain of unfair dismissal.

Employers should have an employee relations strategy with the aim of avoiding conflict, but which enables any disputes to be dealt with effectively, so causing the minimum amount of disruption. Among the things that you may need to consider are:

your organisational structure
participative methods of communication, such as joint consultative committees
a disputes procedure for dealing with collective grievances
the training of senior staff responsible for negotiations
the use of an external body for arbitration or conciliation, such as ACAS
identification of critical processes and contingency plans for ensuring adequate cover such as:
re-allocating work to employees not on strike
re-allocating work to other work groups
engaging temporary staff in lawful circumstances
rules to refuse annual leave or uncertified sickness on the days when strike action is called and overtime bans on the days following
processes for recording strike days and deducting pay
internal and external communication plans

Union recognition does have some advantages. Trade unions can benefit an organisation through applying their knowledge and experience of working with other organisations. Working co-operatively with a union can also help build good working relationships between management and staff. Employees in unionised environments often feel more involved and fairly treated which encourages trust and commitment. Communication tends to be easier in difficult situations when an employee is represented, for example in disciplinary meetings or where at risk of redundancy. It can also be quicker and easier to negotiate pay and terms and conditions through a single body rather than individually.

However, for the employers who have no union and prefer not to have a recognised union to deal with, the best advice is to fill the void with a suitable mechanism to meet the need of employees for information and some involvement.