The new 'Winter of Discontent' - Legal issues for employers to consider

The recent industrial action across the nation feels like a throwback to the 1970s and 1980s. Then, as now, the UK was experiencing cost of living and other economic problems.

The majority of workers currently striking are predominantly employed in public services and national infrastructure. Interestingly, many would have been described only very recently as “key workers” during the Covid-19 pandemic.

However, the current spate of industrial disputes is by no means restricted to such sectors or workforces and the private sector has also seen its fair share of industrial action too. For example, staff at Amazon and Tesco have recently been in dispute with their employers.

Any organisation faced with the threat of strike action by its workers, or indeed action falling short of strike action, must contend with a raft of different challenges. These include, amongst other things, communicating effectively with its own staff, its stakeholders and any unions involved.

There are also important and, in some respects, complex legal obligations that employers have to their staff who are participating in lawful industrial action and to any recognised trade unions so as not to be seen to be bypassing the effect of any collective agreements which are in place. As a general rule, employees taking part in union activities should not be subjected to any detriment or be dismissed as a result and employers who seek to go round a recognised trade union to break the impasse by making offers to their staff directly do so at their peril.

As organisations facing strike action are well aware, the tactics now used by unions to “leverage” their members’ negotiating positions and to secure improved offers regarding pay and conditions involve reputational risk. Len McCluskey, the former general secretary of Unite, was a prominent advocate for the use of “leverage” tactics in industrial disputes.

Leveraging effectively involves targeting an organisation’s network of stakeholders, from its shareholders to potential future customers, and raising specific concerns with them about the organisation. It is a targeted tactic which has been adopted by others across the union movement.

Unions also typically identify an organisation’s reputational pressure points and then release stories to the media which focus attention on those issues. Examples include media releases suggesting that supermarkets will suffer “Christmas shortages” due to particular industrial action, or suggestions that World Cup travellers would face delays due to industrial action by workers in the travel industry.

Naturally, such messaging guarantees headlines and grabs the public’s attention. Such messages are often combined with statements to the effect that the workers involved in the strike supported their employer during the Covid-19 lockdowns and kept on working, but such loyalty has not been reciprocated. Of course, an organisation may also work primarily with non-union employee representatives to try to solve a dispute.

Public opinion towards workers who go on strike is largely very favourable. Opinion surveys frequently reveal a high level of sympathy for employees who take such action. This is unlikely to change during the current economic climate and members of the general public will arguably feel an even greater level of sympathy for workers facing financial hardship. Neither is the public desensitised to the complaints of workers who strike due to the current volume of industrial action.

How can an organisation manage its communications strategy and protect its reputation in the face of such activity? 

Firstly, it is sensible to think ahead and prepare a “crisis communications” plan in advance. This can anticipate and draft key messages which will need to be conveyed by an organisation during threatened or ongoing industrial action. In particular, what will be said to stakeholders and staff, and what can be said about how services or production will be maintained?

Secondly, strike action is a last resort for workers. Any industrial dispute can be a very emotive topic for all involved. Any statement made by an organisation concerning industrial action must have one eye on the future, and balance the need to protect the business with the ongoing relationship with its staff and their union representatives. Any messaging will need to carefully dovetail with the organisation’s negotiating and legal position in the industrial dispute. It will need to avoid escalation and keep the long term view firmly in mind.

Thirdly, if false and damaging statements are published about the business regarding the industrial action, it may be sensible to take legal and communications advice on potential options.

If a defamation complaint is raised concerning statements made against an organisation, it might be appropriate to demand that certain words are not republished, content is taken down from websites or social media, an apology or correction is provided, or, in the most serious cases, compensation is sought.

An organisation’s approach to its communications during industrial action is important in facilitating a resolution and protecting ongoing relations with staff and other interested parties.

How we can help

Brabners in Lancashire is located at Sceptre Court, Walton Summit. If you would like to discuss anything raised in this article, please give us a ring on 01772 823921, quote “LBV” and a member of our team will be happy to assist you.  

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