trade unions - hr and employment law in education conference 2015, heather mitchell
TRANSCRIPT
Union relations, strikes and work to rule
What you can and can’t do about it.
Heather Mitchell - Associate
HR and employment conference for
school leaders 2015
#BJHR15
Managing union relations
Day to day relations
Day to day relations
Statutory right to be accompanied at meetings
• grievances
• disciplinary – any hearing where a warning
might be given.
Case study – the postponement game
Sadie has been off sick since she was invited to a
disciplinary hearing on 1 October (the allegation is that
she assisted in exam fraud). You agreed to postpone
the hearing whilst you sought OH advice.
OH has confirmed that Sadie is fit to attend the
hearing which has been rescheduled for 16 October.
Her union rep has just told you that he isn't available
on 16th and you have to move it to after half term.
Do you have to?
Postponing hearings
Employment Relations Act 1999
s10 Right to be accompanied
(4) If -
(a) a worker has a right under this section to be accompanied at a
hearing.
(b) his chosen companion will not be available at the time proposed
for the hearing by the employer, and
(c) the worker proposes an alternative time which satisfies
subsection (5)*
The employer must postpone the hearing to the time proposed by the
worker.
Postponing hearings
(5)* An alternative time must –
(a) be reasonable, and
(b)[be within 5 days of the originally proposed date]
Conduct at hearings
“The companion should be allowed to address the hearing in order
to:
• put the worker’s case
• sum up the worker’s case
• respond on the worker’s behalf to any view expressed at the
hearing.
The employer is,however, not legally required to permit the
companion to answer questions on the worker’s behalf, or to
address the hearing if the worker does not wish it, or to prevent
the employer from explaining their case.”
Discipline and Grievances at work – the ACAS guide
Policies
Consultation vs negotiation?
• legal minimum
• contractual?
• good practice
• policies where disciplinary action is an
outcome?
Industrial action
Types of industrial action
Strike
Action short of strike:
• work to rule
• lock in
• overtime ban
• go slow
• sit in.
Can I get an injunction to stop it?
Only if one of the requirement have been breached:
• valid trade dispute
• properly organised ballot
• notification.
Or if it is a ‘prohibited industrial action’
What is a ‘trade dispute’?
A dispute between workers and their employer which relates wholly
or mainly to any of:
• terms and conditions of employment
• the physical working conditions of any workers
• engagement or non-engagement of one or more workers
• suspension of one or more workers
• termination of employment of one or more workers
• allocation of work or duties between workers or groups of workers
• disciplinary matters
• membership or non-membership of a trade union by a worker
• facilities for union officials
• machinery (that is, the infrastructure and process of) negotiation or consultation,
or other procedures, relating to the above (including union recognition and union
representation rights for a worker).
Timescales
Why does there need to be a valid ballot?
"An employee has no right to complain of
unfair dismissal if at the time of dismissal
he was taking part in an unofficial strike or
other unofficial industrial action.”
s237 Trade Union and Labour Relations (Consolidation) Act 1992
Consequence of a valid ballot
Protection against dismissal
However, industrial action is still likely to be a
breach of contract, so pay can be deducted.
• strike day (burgundy book - 1/365)
• work to rule?
Work to rule – is it a breach of contract?
Case study – pay deductions
Catherine refuses to participate in peer observation. This is in
breach of STPCD:
63.11 requiring the teacher to contribute to the professional
development of other teachers
63.13 requiring her to participate in the review of her own
performance
61.16 requiring teachers to collaborate with colleagues
The head writes to her with a warning that if she continues to
refuse then a 10% of her pay will be deducted on an ongoing
basis to reflect partial performance.
She continues to refuse so the deduction is made.
Practical guidance when a strike is threatened
If possible to seek to resolve (i.e. not a national
strike)
Two pronged attack:
• make reasonable attempts at negotiation with
Union reps
• separately, seek to get staff on side.
Weather the storm?
And once a strike is going ahead
“In the event of strike action
at a school, the Department
for Education expects the
head teacher to take all
reasonable steps to keep the
school open for as many
pupils as possible”
DfE advice October 2014
And once a strike is going ahead - FAQs
Can I ask staff if they are going to strike?
Can I bring in agency staff?
What are the rules on picketing?
What can I do about staff intimidating colleagues?
www.education-advisors.com
Talk to us…
Heather Mitchell | 0207 871 8511
Please note
The information contained in these notes is based on the position at
October 2015. It does, of course, only represent a summary of the
subject matter covered and is not intended to be a substitute for
detailed advice. If you would like to discuss any of the matters
covered in further detail, our team would be happy to do so.
© Browne Jacobson LLP 2015. Browne Jacobson LLP is a limited
liability partnership.