REUTERS | John Kolesidis

Industrial action and employees’ journeys to work: implications for employers

The recent rejection by train drivers of the deal offered to end the long running industrial action affecting Southern rail raises the spectre of further strikes and additional disruption to many people’s journeys to work. There have been reports of businesses closing and employees losing jobs, as well as suggestions that industrial action may spread to other parts of the country. All in all it promises to be a long, hot summer for employees (and employers) located in areas affected by any strikes.

Employers may wish to consider their options now, during this apparent lull in the strike action, in order to be prepared if and when the strike action begins or recommences.

Proactive employers could explore alternative ways to get employees to work during strike action affecting transport (bearing in mind employers’ liability and appropriate insurance). Employers may consider:

  • Whether employees can work from home.
  • Whether employees could make up hours on a different day (bearing in mind the Working Time Regulations 1998 (SI 1998/1833), sufficient break time and safe working).
  • Whether employees could work from a different location (an employer may wish to temporarily swap workplaces).

Persistent lateness by employee

Before embarking on any type of disciplinary action for persistent lateness, an employer should carry out a thorough investigation considering issues such as:

  • Whether the employee was genuinely impacted by the strike.
  • Whether the employee made any reasonable attempt to make it into work (some employees are so dedicated that they will brave a hurricane to attend the office, while others may refuse to take a bus instead of a train).
  • How late the employee was.
  • Whether the employee has any disability which would make it difficult for them to get to work using an alternative method.
  • How many times they have been late before.

Employers may wish to deduct money from the employees affected (where a contract of employment permits this). Employers may also consider requiring employees to take annual leave. Bear in mind possible claims for unlawful deduction of wages and the requirement to provide employees with notice that they should take annual leave. Good industrial relations may also be at the forefront of the employer’s mind, as employees may be particularly upset if they lose out financially through no fault of their own.

Following a proper investigation, the employer’s options could include:

  • Do nothing. If an employee’s journey to work is genuinely impacted by a strike, the employer may choose to do nothing. This response may be particularly appropriate where a number of employees are affected (remembering the obligation to treat employees consistently).

Dismissal may be an option for the employer in the following two circumstances:

  • Where the employer discovers that the employee is taking advantage of the strike to have time off work (the employer should have a belief based on reasonable grounds that the employee is “swinging the lead”); or
  • Where the disruption to the business makes the continued employment of the particular employee or employees untenable, in which case a dismissal for some other substantial reason may be considered (this will be dependent on factors such as the number of absences, the nature of the employee’s job, the predicted duration of the strikes and the alternative arrangements attempted). However, it is important to remember that Employment Tribunals are likely to be sympathetic towards the plight of employees who are genuinely unable to make it into work.

Travel disruption policy

In the long term, employers should review their contracts of employment and consider putting in place a strong and well-worded travel disruption policy. Employers may wish to make provision in their contracts for the deduction of wages or disciplinary action (or both) where the employee has not made sufficient effort to get to work.

Devereux Samuel Nicholls

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