CIPD Voice On... industrial and employee relations, by Rachel Suff, CIPD's senior policy advisor on employee relations
Many organisations in the UK have faced extensive employment relations challenges recently. The cost-of-living crisis, falling real wages and wider dissatisfaction with working conditions are a potent recipe for the ongoing strike action across public services, although these problems are not restricted to the public sector. These disputes are a sharp reminder of the continued influence of trade unions in key sectors, as well as the need for organisations to build positive employment relations to help avert industrial action.
The government’s response to the collective unrest is to introduce new legislation. The Strikes (Minimum Service Levels) Bill 2022-23 would allow the government to set minimum levels of service in six sectors, including fire and rescue, health and transport, which must be met during strikes in Great Britain to ensure the safety of the public and their access to public services.
On the face of it, this doesn’t sound unreasonable. The strike action by nurses and ambulance workers understandably raises issues about the essential need to ensure the health and safety of the public, especially during the winter months when demand for services is higher. The government’s rationale for introducing the law – ‘to ensure that striking workers don’t put the public’s lives at risk’ – is an emotive one, although in the parliamentary debate opposition MPs argued that public services were already failing to meet minimum services even where there were no strikes.
But is the key to dealing with the current wave of industrial action a legislative one? We need much deeper scrutiny of the Bill and its potential consequences to answer that question.
Are new laws necessary?
The new legislation could have far-reaching implications beyond the government’s aim of protecting minimum service levels as this House of Commons Library briefing makes clear. For example, the Bill would allow an employer to give a ‘work notice’ to a union specifying which workers the employer required to work to ensure required service levels. If the union fails to ‘take reasonable steps’ to ensure that all workers requested to work comply with the work notice, it will lose its protection from liability. Further, in such cases all workers who take part in the strike (and not just those who act contrary to work notices) would lose their protection from unfair dismissal.
This potential scenario has serious implications for the employment protection of workers who could face automatic dismissal for actions they are not individually responsible for. It could also mean the loss of workers in sectors such as the NHS that are already facing serious workforce shortages.
The decision to legislate as a first step seems premature and the speed at which the government is trying to push this Bill through means that it is unlikely to receive the scrutiny and refinement that it needs given its potential far-reaching consequences. A more effective approach would have been to first negotiate and agree voluntary minimum service levels with the unions involved rather than reaching for legislation as first step. Indeed, current strike action in the NHS has typically involved the unions agreeing minimum service levels (MSLs) at a local level, which they argue is a more effective approach.
The UK government has already passed stringent pieces of legislation limiting the ability of trade unions to take industrial action, such as raising the thresholds for voting in strike ballots. Introducing further law won’t necessarily solve the industrial relations problems causing the current waves of industrial action. The risk is that workforce discontent becomes even more entrenched and manifests itself in unorganised conflict such as low morale and performance, individual disputes and high staff turnover and sickness absence. These can also have a damaging impact on the level and quality of public services.
Although undoubtedly complex, it’s through a commitment to resolve and seek agreement through negotiation and compromise on all sides that the current disputes will be resolved and further action averted. Conversely, the proposed legislation could merely add to the environment of confrontation and escalation between the unions, their employers and the government. Indeed, the government’s own impact assessment for its previously proposed legislation on MSLs for transport warns that the introduction of legislation around MSLs ‘has the potential to have an unintended negative impact on industrial relations, which could have detrimental impacts for all parties’.
The impact assessment highlights several other risks and unintended consequences, such as employers and unions failing to come to an agreement in respect of suitable MSLs. This could result in a judicial review process and mean many months of protracted legal disputes between employers and unions if they are unable to reach a voluntary agreement. It also warns of an increase in staff taking action short of striking which could become the prevalent form of lawful protest.
Collective negotiation – a more productive approach?
Having a collective voice at work is part of every employee’s fundamental right, and it can make a huge difference to people’s working lives. The right to withdraw labour is rooted in international and human rights law that could be viewed as a necessary lever of last resort to address the power imbalance between employer and worker.
The focus should be on resolving the root causes of the collective disputes. The cost-of-living crisis and pay/wage levels are no doubt the catalyst but there are other deep-seated issues around terms and conditions that need addressing. Ultimately, effective long-term employment relations in this country will rely on effective collective negotiation and collaborative working relationships with trade unions to hopefully avoid such action in the future. Where disputes are deadlocked, making use of independent third-party conciliation through Acas could help the parties to negotiate an agreement.
What does this mean for people professionals?
It’s clear that trade unions remain a legitimate influence in many workplaces. Organisations, and people professionals, need to take them seriously and engage constructively with them. CIPD research shows that most employers recognise the importance of unions and are open to working together to tackle the big issues. Over the past decade CIPD research has highlighted the shifting role of people professionals, and the transition of employment relations from being a specialist discipline and career choice for many HR practitioners to being regarded more as a skillset required by some HR generalists. At the same time, there has been comparatively little industrial relations conflict in most sectors in recent years. Together these developments have contributed to employment relations as a discipline becoming regarded as less important than it has in the past. This perception needs to change to enable the people profession to rise to the challenges so evident in the current climate of strikes.
People professionals and line managers need to have the right skills to enable them to deal with conflict and manage collective relationships with employee representatives.
It’s important to build trust through honesty and direct communications and cascade a positive joint working ethos throughout the organisation, so that managers at all levels approach working relationships with representatives in a constructive way.
The current industrial relations climate seems dominated by adversarial strike action. However, we should take heart from the many examples of how unions and employers worked collaboratively to protect essential services, as well as employee and service user health and safety, during the pandemic. Our research shows how consultation and active dialogue between workers and management, including through employee representation, were critical through COVID-19.
This is undoubtedly a difficult period for employment relations and there are no clear lights at the end of the tunnel yet. Without underestimating the challenges for some employers, adversarial relationships should be avoided wherever possible. Where there is union recognition, our survey findings and case study insights show how much better the outcomes can be if employers approach relationships with union representatives in a spirit of cooperation.
