Industrial action and contingency planning in the health care sector

Claire Rosney and Helen Badger look at what local government employers can learn from the recent industrial action in the NHS.

This week we are set to see thousands of health care workers take industrial action in a dispute with the government over pay. The scale of industrial action across the country offers a timely reminder to employers, particularly those in the public sector, to consider their own contingency plans for coping with wide scale industrial action. 

NHS employers are already battling with a staffing crisis combined with winter pressures and experts predicting this winter is set to be the worst on record for the NHS. Other public sector employers would be similarly impacted if strikes were to spread. It is important to be prepared for all possibilities and below we set a reminder of some of the key lessons from previous industrial disputes for employers to consider over the coming months:

• Be sympathetic to staff concerns about the rising cost of living and the impact it is having on their pay. The fact that these are national phases of industrial action may impact on your communications with staff. Ultimately, it is a matter for individuals whether they take action or not but showing that you understand their concerns may go some way to winning hearts and minds especially as the employer is ultimately not responsible for the pay deal on the table.
• Do take control of the communications with your workforce. Consider sending out sensitively worded comms to staff that may help them make up their minds about whether they genuinely wish to take action. Staff will already be acutely aware of the pressures (long waits for ambulances/beds/treatment in the NHS) and will feel genuinely conflicted knowing that any action taken will compound this. Therefore, emphasise that, whilst you are sympathetic to their concerns over pay, you also know that staff genuinely want to do right by service users.
• Employees may be nervous about crossing the picket line. Pickets are permitted by law, but they must operate peacefully and may not obstruct anyone’s free movement. It may therefore be useful to reassure employees that they have the right to come to work normally and possibly suggest that they arrive at site with other members of staff who are also not participating in the action.
• Some employees may wish to take annual leave on a day of action. This is permitted although the usual holiday request process will apply. Equally you can refuse leave requests based on operational needs where appropriate.
• Managers should also bear in mind that there are specific protections for employees who take part in lawfully organised industrial action. For example, if an employee is dismissed within 12 weeks of taking lawfully organised industrial action and the reason for their dismissal is that they took part in such industrial action, then their dismissal will be automatically unfair. In addition, employees should not be subjected to a detriment for participating in industrial action.
• However, your usual rights and responsibilities continue to apply during any periods of industrial action and the employer’s usual policies, (including disciplinary processes) continue to apply and should be addressed in the usual way. Conduct or performance concerns should be well documented and evidenced which will assist in the event the employee alleges that the concern has only been raised due to them taking part in the action. Equally, in advance of the action, you may wish to remind employees of the conduct expectations of the employer and that these continue to apply during any period of action, including on the picket line.
• With regard to contingency planning, the law has recently changed to allow employers to use agency workers to cover for striking workers. However, you should consider the use of agency workers carefully so as not to bring greater employee relations issues running the risk of the local employer’s actions becoming the focus of a new dispute. Employers must also ensure that any agency workers engaged are suitably qualified to meet the obligations of the role they are undertaking. In the NHS, it is unlikely that there will be a ready supply of agency workers suitably qualified to backfill roles. Also, agencies and workers may be reluctant to supply labour given the sensitivity of the dispute. Therefore, as an alternative, employers may wish to consider using existing employees from other parts of the business or existing casual workers to cover roles of striking employees or using agency workers after the strike is over to clear any backlog.

Finally, it is worth remembering that the action will eventually end but the employment relationship will continue. Therefore, you should be respectful of the decisions staff take to participate in the action or not, so that the relationship is not tainted going forwards.

Claire Rosney is a Professional Development Lawyer and Helen Badger is a Partner in the Employment Healthcare Team at Browne Jacobson.