Industrial action readiness – September
2014
NHS trade unions are involved in a national dispute over pay for 2014/15.
UNISON members have now voted in favour of taking strike action and
action short of strike.
Other NHS unions are also in the process of balloting their members over
industrial action:
• The Royal College of Midwives (RCM) ballot will close on 29 September.
• GMB closes on 1 October.
• The Society and College of Radiographers (SCoR) ballot closes on 3
October.
• The Chartered Society of Physiotherapy (CSP) is making preparations to
be in position to call an industrial action ballot, if it decides this is
necessary.
• Union of Construction, Allied Trades and Technicians (UCATT) and the
British Dietetic Association (BDA) are also holding ballots but their
timetable is not known.
Royal College of Nursing and British Medical Association are not balloting.
Unions aim to take a co-ordinated campaign of industrial action from mid
Content
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Working with local trade unions and staff
Need for local contingency planning
Options for employers on staffing issues
Action short of a strike/working to rule
Issues for employers – key to ensure safe high quality services for
patients/service users
Decisions from the board
Dealing with unions
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Constructive relations with local unions more likely to ensure effective
outcomes with contingency planning.
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Unions can provide information which should help deal with practical issues
that may arise during any industrial action
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Aim should be to agree a local protocol via local negotiating/consultative
forums – so no surprises during action
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Discussion with unions should include:•
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how to ensure emergency care/ patient safety will be protected
advance/early notice of unions’ intentions
HR policies to be followed –impact on pay and conditions
communications internal/external by employer and unions.
Contingency planning
– contacting staff
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How to maintain essential services during industrial action?
Who is going to take industrial action?
May discourage staff from taking action/ ask staff if they intend to strike to
help with contingency planning
Language must not be intimidating
Might consider including the following:
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explaining the reputational damage
reminding staff that if they are opposed to the strike, they need to vote
informing staff that they will not be paid
remind staff of the duties under their regulatory authority.
Contingency planning
– Staffing Issues
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Agency workers
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Unlawful for the agency to supply to the end user a worker to cover work
normally performed by the striking worker
What about pre-booked agency staff?
Re-deploying staff
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Do staff have adequate training/skills to undertake other duties safely?
Willingness of staff to cross picket lines/cover staff on industrial action?
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Use of internal bank workers - but they may also be taking action
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Volunteers
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Don’t forget staff who are meant to be “on-call”
Contingency Planning
- Ensuring Emergency Cover
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Section 240 of TULCRA – criminal Section 240 establishes that a person
commits a criminal offence if they:
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Wilfully or maliciously break a contract knowing or having reasonable cause to
believe a probable consequence will be to
• endanger life or cause serious bodily injury, or
• expose valuable property to serious injury or destruction
Fine up to £500 or imprisonment up to 3 months or both
Contingency Planning
– Ensuring Emergency Cover
– Section 240 in practice
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No known prosecutions under section 240
BUT use it as a basis for discussions with unions regarding how to deal with
critical and emergency care
Which departments should be exempt from strike action? Need for risk
assessments
Employer should request exemptions:•
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Accident and emergency
Intensive care
Renal dialysis
Neo-natal
Some oncology
Unions likely to take account of local circumstances - will not agree to
“blanket exemptions”
Contingency Planning
– Wider issues
• Impact on the wider health economy
• Emergency preparedness plans
• Effect that industrial action may have on suppliers/other providers of health
care
• Speak with local commissioners and other health providers locally
• NHS England – a local business continuity approach
Staff sickness absence
and holiday
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Communicate with staff on local policies/procedures
Handling sick leave and holiday requests
Pre booked annual leave and those already on sick leave
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Are they actually taking part in the action?
Those who are absent on the day without prior explanation
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Will you require evidence of sickness?
Action short of a strike
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Unions likely to call for some form of working to rule (i.e. only fulfilling the
letter of your contract and job description)
A go slow
An overtime ban
A withdrawal of co-operation to carry out certain duties e.g.
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only undertaking emergency procedures
not carrying out certain tasks on any given day
refusing to train or supervise colleagues
not attending meetings (e.g. clinical team meetings)
refusing to cover a colleague’s tasks.
Is it a breach of contract?
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If the action is a breach of contract, then:
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the union organising the action has a legal duty to ballot and to notify the employer
of such action – consider what the ballot paper covers
employees are then protected from action which the employer could otherwise
take for breach of contract
employer has various options as to how to deal with employee pay.
Is it a breach of contract?
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If the action is not a breach of contract, then:
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the union probably has no legal duty to inform employers of such action since it
isn’t inducing a breach of employment contracts
in practice unions generally do still notify of action short of a strike
the employees will be entitled to be paid as normal and are acting lawfully.
Do we have to pay staff if
there is a breach of contract?
 Four options:
1. accept partial performance and pay the person normally
2. qualified acceptance of part performance making clear that you will deduct a
proportion of the person’s wage to reflect that part of the job not being done
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but often very difficult to quantify the amount to be deducted
3. reject part performance and pay nothing for any day(s) of such action
4. for continuous industrial action pay nothing until s/he works normally or the
action ends
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For both the last options the employer should make clear in advance that the
person is not required to work unless s/he works normally and that if they
come in to work it will be on a voluntary basis
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Implications for getting co-operation from unions?
How do you calculate
deductions to be made,
including for partial performance?
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Where there is strike action AfC states a day’s pay is 1/365th of annual
salary
For shift work consider when shift starts/finishes against when the industrial
action starts/finishes
There is no set formula for partial performance deductions
Generally this is done on a pro rata basis to reflect the proportion of the role
not being carried out
The formula and the fact of the deductions to be made needs to be
communicated in advance.
Decisions from the board
When preparing for industrial action some areas will require a clear
decision from the board. These decisions will need to be communicated
to staff and local trade union representatives in advance of the start of
any action. These areas may include:
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how calculations for pay deduction for strike action will be made
agreement on how partial shift working will be treated – based on service
needs and not a blanket decision across the trust
definition on what will constitute as normal working and therefore what
should continue to be delivered during a period of working to the rule
areas you would seek exemptions.