Strike action has become a regular feature of the news over the last 12 months, with strikes across the transport network and NHS receiving a huge amount of coverage and impacting the delivery of key services.

We're also seeing a significant increase in union activity across our client base, including in the education and not for profit sector. This ranges from unions requesting recognition, through unions adopting robust positions over pay, and other terms and conditions, to full-blown formal industrial action.

A collaborative relationship with a union can be a real asset to both an organisation and its people. At the same time, there are some common pitfalls to be aware of and prepared for – in terms of both recognising a union and working with it post-recognition. It is an evolving area though, and up to date strategic advice will help you secure the best outcomes.

Recognition – To CAC or not to CAC

There are two routes through which a union might look to achieve recognition: either by way of voluntary recognition, or through the statutory recognition procedure (also known as 'compulsory recognition').

Voluntary recognition involves the employer and union negotiating and entering into a recognition agreement, under which they agree collective bargaining arrangements in relation to a specified group of colleagues (the 'bargaining unit') about certain matters (typically key terms and conditions of employment, including pay and hours).

This is the more usual route, and while many employers' welcome recognition, it's important to avoid sleep walking into a voluntary agreement which the Union has drafted and which hasn't been properly reviewed. Such agreements are often very wide, can be unworkable, and can cause major issues if an employer and union later end up in a dispute. The solution is to have constructive, realistic and strategic negotiations at the outset, with eyes wide open to potential risks further down the line and how to mitigate them. This, together with taking proper advice, will help ensure that the parties end up with a better final form agreement.

If the employer and union can't reach agreement, it's open to the union to make an application to the Central Arbitration Committee under the statutory recognition procedure. This procedure is heavily regulated and requires the union to have a certain level of existing employee support to be eligible to make an application. The resulting agreement is also more prescriptive than is desirable for either side.

Whichever route is taken, once a union has been recognised it means that it has the authority to negotiate the relevant terms and conditions on behalf of the staff covered by the agreement. Recognition agreements are rarely legally binding, unless they explicitly state that they are. However, in almost all cases the best approach, and certainly the expectation, is that both employer and union will follow the arrangements and processes set out in the agreement. Deviating from this is likely to damage industrial relations and may create legal risk, so advice should always be sought in cases where an employer thinks that this might be necessary.

Consequences of recognition

Where a union has been recognised by an employer, the terms and conditions set out in the recognition agreement are subject to collective bargaining, i.e., they must be negotiated and accepted by the union collectively on behalf of the relevant colleagues, rather than negotiated directly with employees. It is therefore crucial to follow the relevant collective bargaining arrangements – failure to do so may give rise to a claim from the union for damages, or an application for an injunction to prevent the change.

A common concern we see is when an employer and union appear to reach an impasse in a particular negotiation. At that point, an employer may want to make an offer directly to the relevant colleagues. While in certain cases this might be ok, unless the collective bargaining process (including any dispute resolution process) has genuinely been completely exhausted there is a significant risk of such an offer breaching section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. This is demonstrated in the heavily reported case of Kostal UK Ltd v Dunkley and others and can be a very costly mis-step – advice should always be taken to fully understand the options available, together with any risks and how to mitigate them.

Threatened strike action

Where negotiations reach a genuine impasse or break down, a union may look to start the process of balloting for industrial action. This can understandably be a period of significant concern for employers looking to maintain continuity of service. Contingency planning, including around any potential legal options available, is essential to mitigate the potential impact of any threatened strike action. This planning should happen as early as possible, and any plan should be regularly reviewed and refreshed so it's always up to date and fit for purpose. This process can help an employer more confidently face into any negotiations, rather than feeling hostage to the threatened action.

It's also crucial to maintain an open and constructive dialogue with both the union, and directly with colleagues. That conversation should continue throughout any ballot process, up to and throughout any strike action. It's essential in allowing an employer to explain to colleagues the reasons behind its position in any dispute, and to demonstrate that it's listening to employees. It also allows the employer to fill any gaps in understanding and correct any misinformation or mischaracterisation which may have arisen during negotiations. This may be the difference in persuading any ambivalent or undecided colleagues which, in ballots where turnout is expected to be low, may make all the difference. Care should however always be taken in drafting those comms, to avoid giving rise to any allegations around potential detriments to colleagues supporting or participating in union activity – and we can support with that.

Highly leveraged

As well as increased strike action, we're also seeing an uptick in so-called leverage tactics – i.e., activities short of strike designed to embarrass or disrupt an employer. In the current climate we expect these tactics to continue and, potentially, be used more aggressively. One example of this is a union led ballot of members for a vote of "no confidence" against leadership, a tactic we saw used in the airline industry during the Covid 19 pandemic. We've now also seen this in the not-for-profit sector. While this particular tactic may lack 'teeth' – it doesn't actually compel a Board to take any action – it does send a strong message around colleague engagement, and may be the starting point of escalation to formal industrial action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.