As the country braces itself for what is being billed as the largest rail strike since 1989, it’s not just Network Rail and rail operators with the headache of resolving an incredibly difficult workplace situation.
With negotiations reported to have collapsed and with the government holding fast on its decision not to intervene, Tuesday marked the first day of three days of industrial action by the RMT that stand to cut off large parts of the UK as the train timetable is suspended.
At the heart of the dispute is in effect the perfect storm - and is an issue playing out in businesses up and down the country.
Many businesses, still recovering from the impact of the pandemic, are struggling to compete on wages against rapidly rising inflation and are struggling to provide assurances about long term job security in an uncertain economic landscape.
Moreover, businesses are feeling the acute pain of a double whammy impact of Brexit, in contributing to the apparent labour shortage, coupled with the cost-of-living crisis in the inability to retain staff who are understandably, prepared to switch jobs if it means even slightly more money in their pockets or better job security.
Of course, the majority of office-based businesses are now well versed at home or agile working having had more practice than anyone wanted during the UK lockdowns and restrictions. However, those businesses in sectors such as manufacturing, hospitality, healthcare and retail are unlikely to accommodate homeworking as easily.
That leaves businesses with the difficult question – if workers can’t get into work because of the train strikes – how should we handle it?
Whilst employment lawyers will be keen to assert that the starting point is always the contract of employment, this situation is unlikely to be easily covered by a contractual clause. However, businesses may have an adverse weather policy – essentially a policy that deals with travel disruption which may provide some guiding principles on issues such as how any absence from work will be treated and what the position will be on pay.
Either way, businesses will need to draw upon the flexibility shown during the pandemic. In practical terms, this will mean engaging with workers that are unable to attend the workplace to try and find practical and reasonable solutions.
WHAT ALTERNATIVES ARE THERE?
Within this, some key elements for businesses to consider will be temporary arrangements as to:
ADJUSTED START AND FINISH TIMES
If there is a limited train timetable operating in your area (as opposed to a completely suspended timetable), or if another form of public transport is an alternative, it would be open to businesses to agree with affected workers that start and finish times can be varied on the days in question to accommodate different modes of transport. Whilst this may present a commercial challenge in terms of resource, having some of the workforce in the workplace for part of the day may be preferable to not having them at all.
Taking a flexible approach will be especially vital to protect the rights of disabled workers who may face greater obstacles in attending work without the assistance often provided by the train service and not necessarily replicated elsewhere.
ADJUSTED RESPONSIBILITIES OR PLACE OR WORK
If a limited workforce is available, or if there are some activities that can be redistributed and performed remotely, can this be considered in order to keep more workers working?
Likewise, multi-site employers may be able agree that workers can base themselves at an alternative place of work for the duration of the strikes if they are fortunate enough to have one in easier reach.
SUPPORTING ALTERNATIVE MEANS OF TRANSPORT
With fuel prices at an all time high, many workers may resist taking the car, but can your business facilitate a lift sharing or a carpool approach as a cost and carbon saving initiative? Alternatively, could your business premises make the offer of accommodating bike storage if cycling is an option? Or can your business operate its own temporary means of travel to get people into work?
HOLIDAY OR UNPAID LEAVE?
Where these options do not solve the problem, it is open for businesses to suggest that employees use holiday entitlement to avoid a loss of pay or indeed, agree that the absence will be on the basis of unpaid leave – however, see below for an overview on pay considerations.
WHAT HAPPENS ABOUT PAY?
Above all else, the key question is likely to be what happens about pay if a worker is unable to work all of their working day or is unable to work at all due to the rail strikes.
Unfortunately, this is a less than straightforward issue for businesses to grapple with. Some commentators appear to take the view that if a worker is unable to attend work then a business can legitimately and lawfully withhold pay.
However, an examination of the case law on this point highlights how fact sensitive this situation is with some cases finding that employees ought not to be paid if they do not attend work and others finding that if the non-attendance is unavoidable and unintentional (as, presumably, would be the case with travel disruption caused by the rail strike), there may still be an entitlement to wages.
The starting point is that an employee has the right not to suffer an unlawful deduction from wages and there must be a form of authority in order for a business to lawfully make a deduction.
However, in circumstances where an employee has been unable to work at all the question becomes, is there is any right to a payment in the first place if work hasn’t been carried out?
This is where the written contract of employment comes in because the answer as to whether or not there is a right to be paid will very much depend on how the contract is drafted.
In circumstances where the contract (either express or via custom and practice) does not provide the answer, the general position under contract law is that some form of “consideration” is required in order for wages to be payable. This consideration is either the actual performance of work or in the alternative, being “ready and willing” to work if able. The latter category, which many salaried employees may fall into, may prove the more challenging to overcome.
SHOULD BUSINESSES JUST PAY WAGES IN ANY EVENT?
There are of course wider considerations when it comes to pay – setting aside the conflicting case law and setting aside the position within the contract.
Just as many businesses experienced during the pandemic, staff engagement and morale can be positively impacted where an employer takes a more generous and compassionate leadership approach in difficult circumstances.
Arguably, this is all the more significant at a time when the cost-of-living crisis and the challenge to retain and attract staff is more acutely felt, by workers and businesses respectively, than ever before.
In addition, there is the risk of reputational damage of a decision not to pay workers in this situation – particularly in a climate where workers' rights appear to be headline news (in the wake of the P&O scandal and with further industrial action across the sectors appearing inevitable).
That said, the flip side is of course that paying those workers who are unable to attend work may cause resentment amongst those that managed to attend work and perhaps picked up extra responsibilities for absent colleagues.
In addition, it may not encourage staff to make the extra effort to commute if they will be paid in any event and with further industrial action anticipated in the months to come, businesses will need to bear in mind that this could create an expectation for future disruptions.
With further strike action anticipated – and not just on the rails (teachers, barristers and airport staff are reported to be looking at industrial action in the coming weeks and months), strike action may start to become a much bigger part of the industrial landscape than has been seen in this country for since the 1970’s and 80’s.
The government have announced plans to introduce legislation to make it legal for employers to use agency workers to replace striking staff – something seen by many advocates of workers’ rights as incredibly controversial in fundamentally undermining workers essential bargaining power.
Either way, a turbulent few months feels inevitable and with this in mind, businesses would be well advised to consider their stance now and to effect internal communications and/or policy documents which make the approach clear.
If your business is impacted by the rail strikes, if you are concerned about industrial action and/or for further information please contact Kate Venables or your usual contact in our Employment Team
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.