The Office for National Statistics recently released an updated chart of labour disputes and days lost since 1931. The data is very illuminating. Most of the time workplaces were quite harmonious. However, spikes in activity are clearly visible in January 1931 (3.64m days lost per month to strike action), April 1957 (3.96m), February 1972 (6.51m) and September 1979 (11.71m). There are others notable events including, surprisingly, strikes held in wartime especially in March 1944 (1.6m).

Not unsurprisingly, there were no industrial disputes between February 2020 and December 2021. But post-pandemic negative sentiment in the workplace has seen unrest, but nowhere near the levels seen at other times. Indeed, only since August 2022 have days lost risen into the hundreds of thousands with a peak in December 2022 of 829,000. Since then, the numbers are down to just under 130,000.

And TUC senior policy officer for employment rights, Tim Sharp, has seen this data borne out as workers take action to defend their pay and conditions: “While we have seen the highest levels of industrial action since the pensions strikes in public services a decade ago, there have been far fewer strikes than in the 60s, 70s and 80s.”

Of course, none of this diminishes the impact of strikes on an individual or business if they’re on the wrong side of a dispute. And print is one sector that has been impacted following the walkouts by the CWU members at Royal Mail over pay and the cost-of-living crisis. But there have been other situations to note including the Finnish Transport Workers union seeking improvements in pay for the same reason; its actions led to the suspension of operations in ports in relation to handling of containers. Most recently, some 90-plus unionised workers at Cepac’s site in Darlington are striking for 10 days during the summer because of a row over a pay rise that has strings attached.

Marina Glasgow, Acas chief conciliator, understands the potential for disharmony. She comments that “strikes have been a significant component of the news in recent months and some high-profile strike action has dominated the headlines. This is something that Acas is naturally aware of”.

She explains that during 2021-22, Acas was involved in 510 collective conciliations – a dispute involving an employer and a group of employees, typically represented by a trade union – with that figure being similar to the previous year but slightly down on 2019-20.

The whole point of conciliation is to dilute the effect of disputes and talk them away. It’s for this reason that Acas has seen many disputes that did not result in strike action. That doesn’t makes them any less difficult for the parties involved to resolve. This is why Glasgow says that that this is why “we are improving our advice and guidance on how to deal with difficult workplace situations”.

The main causes of strike action

It’s fair to ask about the main causes of strike action. Is it all about cost-of-living pay demands, or are there other issues such as grievances or support for an employee ‘unfairly’ dismissed?

From the TUC’s standpoint, Sharp cites the fact that the main national strikes have been in public services, but “there have also been many smaller disputes in private sector workplaces. Pay is the biggest issue with average pay worth less today than 15 years ago”.

Glasgow thinks the same and says that “over 60% of the collective conciliation cases that were brought to Acas in 2021-22 were pay-related”. However, she makes clear that many pay-related strikes are not exclusively concerned about recent rises in prices, despite the cost-of-living crisis being a widely reported issue. Indeed, she explains that a number of strikes “can be concerned with low pay increases or even frozen pay, and many unions have highlighted as part of their dispute the cumulative effect of many years of low pay and lack of investment”.

She continues: “Some disputes about pay are not just about being paid enough to live on. They can be about being paid fairly for the responsibilities and duties of the role.” However, other situations have involved the need or desire for businesses to make changes to ways of working to improve competitiveness and profitability, or simply to reduce costs during tough economic times.

Interestingly, Brendan Perring, general manager of the Independent Print Industries Association (IPIA), is of the view that over the last decade at least, the main cause of strike activity within print businesses was a communication disconnect between staff, management and owners. He says that this generally happens “when a drive for profit or turnover growth is at the expense of adequate resource levels, and staff are expected to try and make up the deficit through unrealistic productivity demands without adequate compensation”.

He does feel that the disconnect “can be exacerbated if team feedback is not being transmitted to owners consistently and transparently by upper management”.

That said, Perring has seen disputes arise – as has Glasgow – where there is ordinarily good communication along with realistic productivity expectations. He says: “Outside factors such as rapid inflation and a fall in real-terms wages have lead to unions balloting strike action to leverage wage increases”.

Some might say that there have been more attempts to resolve situations. Others suggest that employees are being hardnosed about calling and balloting for strikes. But from a logical standpoint, whenever a strike is called it is a clear indicator that workers feel strongly about the given issue. For many, who ordinarily aren’t militant, the decision to vote for strike action is not an easy one to make; few can afford to lose a day’s pay, so strike action is a very visible sign that they want the employer to listen to what they are saying.

While workers lose pay when they strike Sharp thinks that “action is sometimes needed to bring an employer to the negotiating table; with the cost-of-living crisis biting hard, workers need a fair response from their employers”. He considers this course of action pertinent for many public sector workers, “whose real pay value has already been cut by several thousand pounds in the last decade or so”.

For him, strike action is a working tool: “We’ve seen lots of successes where employers have responded with better deals. But the slowest negotiations have been in the public sector. It took ministers many months before they even came to the negotiating table”. He thinks that response is unacceptable as “pay negotiation is a normal part of industrial relations; ministers can’t just opt out”.

But for Acas, as Glasgow comments, “our role in this is not to judge either side’s actions. We understand the pressure both sides face, but we also know that the best way to find a mutually acceptable solution is to talk about it honestly and openly.”

Conciliation isn’t anything new and its roots in the UK can be traced back to the Conciliation Act 1896. This led to the government of the day launching a voluntary conciliation and arbitration service which gave free advice to employers and unions on industrial relations and personnel problems.

Evolving over the years, the service became Acas – the Advisory, Conciliation and Arbitration Service – in 1974. Its purpose, as Glasgow states, to “provide an impartial and confidential space to have the necessary dialogue to help the parties find their way through their issues”.

Reducing the risk of strikes

We all innately know that talking leads to solutions. Indeed, Sir Winston Churchill once commented, that “jaw-jaw is always better than to war-war”.

And this is something that Perring strongly believes can lower the temperature of a dispute. He advocates that: “The best way to prevent strike action is to have a direct and transparent communication feedback loop between staff on the shop floor and the owners of a print business, with upper management kept in the loop and tasked with resolving issues in a timely and reasonable manner.” Of course, sometimes the management and owners are one and the same, which in Perring’s view “makes this process more straightforward”. But if staff requests cannot be reasonably accommodated, then he recommends telling staff why this is so, and offering a compromise solution.

It follows that the better an employer’s channels and relationships are with their workforce and representatives, the better the chance of anticipating and avoiding strikes. “A strike,” says Glasgow, “is an option of last resort, so should rarely come as a surprise. Thus regular forums and joint working groups provide an opportunity to work towards compromise... provided they are engaged with meaningfully.”

The evidence does suggest that on the whole that talking works. Acas recently commissioned YouGov to ask employers and employees whether they thought parties in dispute taking strike action should involve Acas. The results, says Glasgow, showed that 76% of employers and 71% of employees thought they should seek Acas mediation to resolve the situation.

She reminds that Acas has a “great track record and years of experience” in helping resolve disputes between employers and trade unions; its intervention helps parties to achieve a positive outcome in more than 90% of disputes. She adds: “Our service is free, independent and impartial, so we are in the best position to support parties in dispute and would always recommend talking to Acas.” 

However, the service is voluntary; Acas can only provide help if both parties agree.

Advice to employers

Employers need to tread carefully where a dispute deteriorates to the point of strike action since the law prescribes the process and grants employees certain rights if the rules are followed.

Workers taking part in official strike action are protected by law. This means that employers should not cause detriment to any strikers, by, for example, reducing their hours, bullying or harassing them, or turning down requests for training because they’ve gone on strike. Striking employees are also protected from dismissal by law. If an employee is dismissed for going on strike for 12 weeks or less it is automatically an unfair dismissal.

If an official strike is called employers can ask their employees if they intend to take part. However, workers do not need to tell their employers if they plan to participate; they should, though, tell their employer they’ve been on strike when they return to work. 

Mark Stevens, a senior associate at law firm VWV, recommends that employers be careful when asking colleagues of striking employees – who might not be participating in the action themselves – to cover industrial action. He details that “non-striking employees have the right to refuse additional work or extended hours beyond their contractual obligations and employers who try to force their employees to take on additional duties could face resignations and constructive dismissal claims”. In his opinion, asking non-striking employees to cover their colleagues in these circumstances is likely to negatively influence workplace relationships. 

Stevens generally considers the legal issues in relation to strikes to be “complex and frequently change”. A good example of this is the recent judgment on agency workers. He explains that: “In July 2022, the government revoked regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which meant that employment agencies were legally permitted to provide agency staff to carry out the duties of striking employees. However, in July 2023 the High Court has ruled in favour of 13 trade unions challenging the revocation of regulation 7.” This decision, he says, means that the ban on employment agencies providing temporary workers to cover the work of employees on strike remains in place. 

But, as Glasgow has witnessed, their use rarely happened anyway as “agency staff were not sufficiently skilled or trained to replace some striking workers. Additionally, if an employer is looking to resolve a dispute, hiring agency workers as cover may have been counterproductive”.

She does, however, think it a good idea for employers to understand matters such as pay and holiday during a strike. She says that “employers do not need to pay staff while they are on strike, but must pay those on annual leave, sick leave, maternity leave, etc during a strike; the usual rules for sick leave and sick pay apply during a strike”.

It is clear that employers and employees need to find ways of nurturing a culture of talking that reaches agreements. For Sharp, this is best done through negotiating committees (with unions).

Perring too advises employers to find amicable compromises. Indeed, he warns employers to “not react emotionally or in haste” and that “they must first and foremost react by calling upon expert consultants and arbitrators that can help them follow the correct procedures to resolve the dispute”. He, like Glasgow, emphasises that “employees have the fundamental right to withdraw their labour if there is a consensus that their working conditions and renumeration levels are not adequate”.

Stevens, on a day-to-day basis, knows that strikes can be disruptive. However, he reckons that “by approaching the issues with fairness, transparency and a commitment to reaching a solution, employers can navigate through a strike while minimising the long-term impact on the business and preserving positive relationships with employees”.

Ultimately though, Sharp thinks “a more collaborative approach could be fostered by overhauling the current restrictive trade union recognition rules to allow for more collective bargaining in workplaces”.

Planned changes to the law

Employment law is in a continual state of flux and the Strikes (Minimum Service Levels) Bill is the latest manifestation of this. Currently in its final stages in Parliament, if passed it will adjust the law regarding industrial action, introducing minimum service levels in certain public sectors during periods of strike action.

The bill is considered draconian by the TUC and Sharp says that it will mean that disputes could be harder to settle in the future: “A government minister in Whitehall will be able to issue an order for minimum services to operate during industrial action. And a worker could be sacked for exercising their democratic right to strike... at the end of the day, you cannot legislate away worker dissatisfaction.”

In general terms Perring is keen on change. He thinks that the UK’s legislation in this area is “some of the most confined in Europe, a legacy of the waves of industrial action under the Thatcher government.” He wouldn’t be unhappy with “a full reappraisal of this policy area to bring it in line with modern standards of employee and employer protection.”

It’s of note that some feel that the UK is an outlier in terms of trade union legislation. Indeed, the International Labour Organization recently told the government to bring the UK’s union legislation into line with international law.

Sharp will be pleased that employers are no longer able to bring in agency staff to replace those taking industrial action. He was particularly irritated that “the government changed the law to allow this in the face of opposition from both unions and agency employers... sensible bosses recognised that this would just poison industrial relations and prolong disputes”.

Sharp also refers to a former government promising to “protect and enhance” workers’ rights after Brexit. He worries that the Retained EU Law (Revocation and Reform) Act 2023 paves the way “for the watering down or removal of key worker protections such as parental rights and holiday pay that are derived from EU law.”

While the automatic sunset of EU-derived laws at the end of 2023 was removed, “the Act,” says Sharp, “gave ministers huge powers to axe key rights... the government has already set out plans that could undermine working time and holiday pay”.

Only time will tell how the new and planned legislative changes will bed in. 

Handling commercial contracts during a strike

Patrick McCallum, a senior associate at Wright Hassall, knows that businesses risk liability for breach of contract if they are unable to perform, or are delayed in performing, their obligations under a contract because their workers have gone on strike or taken some other form of industrial action.

In pointing to legislation on minimum levels of service which must be met during strikes in the public sector, he says that “the law offers very little to help businesses that are unable to perform their contractual obligations due to their staff taking industrial action”.

As to the most common ways in which strike action could affect a contract, McCallum highlights the supply of goods or services. “Depending on the terms of the contract, the supplier’s customer could be entitled to claim service credits or liquidated damages from the supplier; suspend payment of the supplier’s fees; cancel its order for the goods or services and procure the same from a third party; and/or where the customer has suffered a loss as a result, bring a claim against the supplier for damages due to breach of contract.”

One option to lower the liability risk would be for businesses to include a force majeure clause in their contracts that absolves them from any liability arising from a failure or delay in performing their obligations caused by defined ‘force majeure events’.

But of this McCallum says that it is for the parties to define what constitutes a force majeure event. He says that “the most basic definition is ‘circumstances beyond the reasonable control of the parties’. While the vagueness of this wording helps keep the contract short, this lack of clarity can become problematic for parties, specifically when they seek to argue that strikes should be deemed to be a force majeure event”.

He says this because businesses have control over the working conditions of their staff: “If a supplier was prevented from performing a contract due to its staff taking strike action and sought to invoke a force majeure clause, the customer might argue that if the supplier had only treated its staff better they would not have gone on strike.” The customer might therefore argue that the supplier has not been affected by a force majeure event and should remain liable for its failure to perform the contract.

The solution, in McCallum’s view, is to “provide a non-exhaustive list in the force majeure clause of the events that will be deemed to be force majeure events and include reference to strikes and industrial action”. However, whether other parties will agree to this depend on the negotiating power of the parties: “It is common for strikes to be included as force majeure events but only when they do not relate to the staff of the party seeking to rely on the force majeure clause.”

The only other way to de-risk liability is to place financial limits on liability to another party under the contract.