Chapter 3 - Industrial action
Appendices
- One of the main responsibilities of management is to ensure the continuation of normal working in all circumstances. In situations where industrial action is, or appears to be, in prospect, management needs to take steps to reduce the risk of such action taking place. The following paragraphs provide advice for management at all levels of the Department on how industrial action can be avoided, and on how to prepare for and deal with industrial action should it occur. This guidance is concerned primarily with strike action although other forms of action short of a strike may be used to cause disruption to the normal working of the office. Summaries of the main types of industrial action are given at Appendix 1.
- Industrial action can vary from localised disputes at Area level to Department or Civil Service wide disputes. Equally, the steps to be taken to avoid industrial action will vary from the adoption of particular good practices at line management level to departmental measures such as the management of change across the Department as a whole.
- The main focus of management/trade union discussions, consultation and negotiation is the Whitley Council structure which is explained in Chapter 1 of this Volume. It is therefore essential to the promotion of constructive industrial relations that meetings of Whitley committees are used as a means of ensuring effective two-way communication between management and the trade unions. It is important that both Sides of Whitley remember that the objectives of the committees are:
- to seek co-operation and agreement between the Department and its staff in matters affecting those staff;
- to provide negotiating machinery to deal with terms and conditions of service in the Department; and
- to provide a forum at which general grievances can be discussed.
- By adhering to these basic principles it is hoped that any prospective causes of a dispute can be readily identified and discussed within the Whitley forum as a means of averting the threat of industrial action. Where problems are not resolved at a local level it may be necessary for the Area to contact the Departmental Management Side Secretary to seek advice on what further steps can be taken to avoid the possibility of industrial action. In some cases, where an issue discussed locally may have an impact on other Areas it may be appropriate to refer the matter for discussion at national level. It should also be noted that a failure to consult about matters where there is a legitimate staff interest (eg flexible working hours terms) may leave management open to legal challenge as well as damaging relationships and provoking industrial action.
- The causes of industrial action are varied, but often rooted in resistance to change and/or a lack of understanding of management's intentions or objectives. It is therefore essential that, as far as possible, management informs staff as well as the unions of proposals and explains the reasons for particular decisions. Effective two-way staff/management communications are vital, not only within the formal Whitley structure, but also through less formal line management discussions and meetings.
- Effective negotiation and consultation can only take place when there is sufficient time available to both parties to consider fully the matters in question. The Departmental Facilities Agreement (Chapter 2) is designed to allow sufficient time-off for unions to perform their function fully whilst preserving management's right to ensure that the needs of the Department are fully met. However, in some circumstances, the urgent need for discussions on a particular issue may require the attention of a trade union representative who has insufficient time remaining from their initial allowance. Management in such circumstances should remember the statutory rights of representatives to reasonable time off to carry out their duties and should act accordingly. The adoption of a purely mechanistic approach may, in the long run, cause unnecessary conflict and, in certain circumstances, lead to industrial action.
- Line managers have a central role in the achievement of constructive industrial relations in the Department at local and national levels. Issues which arise from difficulties encountered in one location may escalate quickly and lead to industrial relations problems on a wider scale within a particular Area. It is important, therefore, that line managers, and particularly those with line management responsibilities for union representatives, should be aware of the nature and purpose of Whitleyism. They should also understand fully their own responsibilities and authority under the terms of the Facilities Agreement and the broad legal framework within which industrial relations are conducted.
- Whatever steps are taken to reduce the risk of industrial action it is still possible that such action will take place, either because of factors outside local or departmental management's control or where intractable problems make it impossible for disputes to be settled without industrial action. The following paragraphs detail the departmental contingency plans for dealing with industrial action.
- The most important requirement of management at times of industrial action is ensuring that the critical elements of the Department's work continue. Although it is not possible to foresee every contingency, Area Business Managers and HQ Directors should develop and maintain contingency arrangements to safeguard as much as possible of normal departmental business. The following paragraphs provide guidance on the steps to be taken at local and national levels.
- It is important that staff should be aware of the issues and background to any dispute and kept informed of developments. In the case of national disputes, information on the issues and background and an explanation of the management responses to the dispute will be circulated by Personnel Directorate. All managers should inform their staff of the issues in dispute and encourage them to take a balanced view. Area Business Managers and HQ Directors should also be aware of the importance of feedback and of the need to ensure that Personnel Directorate is informed of the latest staff and union attitudes in relation to the dispute.
- Managers should maintain informal lines of communication, as far as possible, with staff participating in industrial action and should avoid allowing industrial action to influence their relationship with staff. It is also important that management should be able to demonstrate that staff have been warned in advance of the consequences of taking industrial action.
- When an individual is absent without authority through industrial action, a number of administrative consequences may follow. Where practicable, staff should be informed in advance of the effect of such action on their pay, allowances and other terms and conditions of service. The following paragraphs provide a summary of the effect of strike action on terms and conditions of service of staff and will be supplemented by detailed guidance from Personnel Directorate when required:
- Pay
The most important consequence is that staff are not paid whilst they are on strike. In most circumstances, staff on strike for periods of 15 minutes or more will have their pay stopped for the duration of the action. - Superannuation
Whole days of unauthorised absence through industrial action are not reckonable for superannuation purposes. - Annual leave
Whole days of unauthorised absence through industrial action do not reckon towards a higher annual leave allowance. Paragraph 20 provides further guidance on the suspension of annual leave during industrial action. - Sick absence
An officer who: - is on sick absence before commencement of a strike at his or her place of employment, or
- starts a period of sick absence during a strike in which he or she is not participating
- Maternity leave
Whole days of unauthorised absence through industrial action do not count as paid service for the purposes of the maternity leave rules. - Probation
Whole days of unauthorised absence through industrial action do not count as service qualifying for the completion of probation. - Deputising
Periods of unauthorised absence through industrial action are to be treated in the same way as any other absence in applying the deputising rules. - Overtime
Overtime is payable (to staff in eligible levels/pay bands) for hours necessarily worked in excess of weekly conditioned hours. Any period of industrial action which is treated as unauthorised absence does not count towards the completion of conditioned hours. Therefore, any authorised overtime which may be worked during a week in which there is industrial action must be used, in the first place, to make up the shortfall in weekly conditioned hours. Only the balance, if any, will be classified as overtime and attract payment in accordance with the appropriate rules. - It is a manager's duty to ensure that, as far as possible, work for which he or she is responsible is maintained. This may involve re-allocating work or improvising in other ways. Every care must be taken, however, to ensure that no action is taken which might inflame the situation or alienate staff who are not on strike. Any officer may be called upon to do work that is considered essential. However, the work must be appropriate to the level/pay band of the officer or, if he or she is a manager, the levels/pay bands of those he or she supervises. The officer must also be capable of doing the work and, where necessary, suitably qualified. Additionally, it is a manager's duty during an emergency to carry out any other general tasks necessary to maintain continuation of the work for which he or she is responsible.
- The Department's work is very much geared to the Courts and it is here that the effect of a strike will be most noticeable. In wider disputes, Areas should consider liaising with their local Crown Courts and/or Circuit Administrator's Office as these may also be liable to industrial action and will be making their own arrangements. Any plans they make will also be of interest to, and probably affect, the CPS, particularly if they involve closing courtrooms or giving priority to cases where the defendants are remanded in custody. Custody cases, pre or post committal, should receive priority.
- The maximum number of cases which any non-striking staff can cover within a Court building will have to be decided. Although it might be considered desirable to recruit casual or agency staff to assist during any period of industrial action, this could be considered as provocative and advice should be sought from Personnel Directorate before doing so.
- Ultimately, it will be for each Chief Crown Prosecutor to determine his/her priorities in the light of the level of industrial action within his/her Area, bearing in mind the general guidance contained in this chapter and any additional guidance issued in relation to the particular dispute.
- Similar considerations will apply to Headquarters. HQ Directors will be required to identify their priority tasks and those who find themselves understaffed should see if any assistance can be found from other Directorates.
- The effects of industrial action on the granting of annual and special leave are as follows:
- Annual leave is not granted for taking part in industrial action. Determining whether lobbies and protest meetings constitute industrial action will depend on the particular circumstances. Although in general staff are entirely free to participate in lobbies and meetings, it will not be appropriate to grant annual leave for such purposes where this forms part of an ongoing campaign of industrial action. Those participating in such lobbies and meetings during their normal working hours will therefore be regarded as taking unauthorised absence. Managers will need to assess the effects of absences on operational requirements and the extent to which it is clear that staff are taking part in industrial action. In cases of Department or Civil Service wide disputes guidance will be issued by Personnel Directorate on whether time off may be allowed for staff to attend lobbies or meetings.
- Management has discretion in deciding when annual leave may be taken and it might be necessary either to refuse a request for annual leave or to restrict the granting of annual leave when industrial action is expected or in progress. The granting of annual leave in such circumstances would be difficult to justify if, for example, services to the public were thereby further impaired. Annual leave may, however, be granted for pressing personal reasons unconnected with the industrial action.
- Those staff with leave previously authorised who do not take part in industrial action should not be required to cancel or return from leave unless circumstances make this imperative. Any absence during the period of industrial action after the expiry of the period for which leave of absence was granted should, unless it is covered by the guidance related to sick absence, be treated as unauthorised absence.
- Annual leave authorised for staff who subsequently strike should be cancelled. The whole period of absence during the industrial action, including that which would otherwise have been covered by annual leave, should be treated as unauthorised absence. By the same token, annual leave should not be granted retrospectively to cover a period of unauthorised absence. Staff who go on strike for 3 or more whole working days, either in succession or over a short period of time, are required to return to work before taking annual leave, even if this was approved before the ballot on industrial action took place. They should seek re-approval for the leave and they must work normally for a reasonable period of time before leave may be taken. All applications for leave in such circumstances will be considered on their merits at management's discretion.
- The length of the period of normal working required will also be at management's discretion but, in general, should not be less than 5 working days in total where an individual has been on strike for 5 or more working days. Where staff have taken strike action for less than 3 days, a renewed application for approval for leave may be sufficient. Where the cancellation or deferment of such leave would result in demonstrable financial loss or serious domestic hardship, management may use its discretion on the requirement to return to work before commencing annual leave. However, renewed applications for approval should be required.
- It is important that the substance of these paragraphs should be brought to the attention of staff before strike action occurs. Staff who had not previously applied for annual leave but on return from strike action wish to take annual leave shortly after, will be expected to apply in the normal way. The granting of leave should be on the same basis as that given above in paragraphs 3.20 and 3.21. In approving or re-approving leave, managers should be satisfied as far as possible that the individual does not intend to resume industrial action on his or her return from leave. Where appropriate, it should be made clear to staff either immediately before or early on in the course of a period of industrial action, that the authorising of annual leave, when normal working has been resumed, will be at the discretion of management. In exercising this discretion management should have regard to the overriding needs of the Department and, in particular, the need to deal with any backlogs of work.
- Staff will not normally be allowed special leave, with or without pay, during a period when they are taking industrial action. Officers already on special leave at the commencement of a strike will not be regarded as on strike unless their entitlement to such leave expires and they fail to report for duty.
- The aim in dealing with staff during a period of industrial action should be to achieve the greatest possible consistency of treatment between staff normally covered by an FWH scheme and those who normally work standard hours. Flexible Working Hours schemes should therefore be suspended for all staff for the duration of any industrial action to ensure that all staff are treated equally. The suspension of FWH also ensures that any disruption to the normal conduct of official business is minimised.
- When FWH are suspended the amount of pay to be withheld will be based on the standard working day of 7 hours 12 minutes in London and 7 hours 24 minutes elsewhere. For those staff who are absent for part of the working day only, pay will be deducted according to the total period of unauthorised absence in that day. FWH records should be credited accordingly. A full day's pay will be deducted for all staff who are absent for the whole day through industrial action. For each normal working day on which FWH is suspended, FWH records should be credited with the standard hours for one day. Area Business Managers and HQ Directors should therefore ensure that staff are advised in advance of any industrial action that:
- FWH arrangements will be suspended for every day on which industrial action is taken;
- standard conditioned hours will apply on each such day; and
- normal non-FWH times of arrival and departure from work will apply on each such day. These times should be specified. If necessary, such times may be staggered for different groups of staff.
- applied to staff before the introduction of the FWH scheme; or
- apply to other staff in the same location or Area; or
- best suit operational needs.
- Picketing is a common feature of industrial disputes and is intended to instigate or escalate industrial action by persuading other staff to break their contracts. Staff who are prepared to work normally should be encouraged not to be deterred by pickets from entering their offices and carrying on with their normal duties. In some circumstances, it may be helpful for management to make arrangements for conveying staff through picket lines. Interference by pickets operating in a peaceful and orderly manner should not be accepted as a legitimate excuse for nonattendance, and staff who refuse to cross such picket lines should be regarded as on unauthorised absence and thus lose pay.
- Under the provisions of employment legislation, picketing is lawful provided that:
- individuals only picket at or near their own place of work, or in the case of an official of the union at or near the place of work of a member he or she is accompanying and represents;
- it is conducted peacefully to obtain or communicate information or to persuade peacefully a person to work or not to work.
- Picketing may therefore be unlawful if those involved are not at or near their normal place of work. If excessive numbers are involved, local managers should know if those involved at any entrance to a workplace are not generally employed at the place of picketing. Care must be taken, however, regarding elected union officers who may legitimately take part in a picket not at their normal place of work when they accompany and represent those involved in the dispute. Where local management encounter any particular problems with picketing and feel that the action may be unlawful they should contact Personnel Directorate immediately for advice before taking any specific action such as contacting the police.
- Refusal by CPS drivers to cross picket lines should be regarded as industrial action short of a strike where the evidence suggests that the reason for the refusal is one of principle and not attributable to physical obstruction. A refusal by drivers to cross picket lines should be reported to Personnel Directorate who will be responsible for considering the appropriate management response. The form of any response will have regard to the need to maintain an overall service and the possible risk of escalation.
- changing the IDS routes;
- delivering to buildings which are not picketed, from which mail could be collected and delivered by volunteer members of staff using their own private vehicles on official duty; or
- employing private contractors to carry out deliveries.
- It is essential that managers prepare contingency plans to ensure that, whenever possible, a postal service is maintained. Such plans should include establishing the availability of private contractors. Areas are advised to discuss and agree their alternative arrangements for the collection and delivery of mail with local Post Office management and Post Office Headquarters, as appropriate, in advance of any anticipated industrial action. It is important that both local and national liaison between the Department and the Post Office should be maintained, particularly during industrial action.
- Industrial action by employees in other organisations may cause a disruption of public transport services. In the event of an emergency involving the serious dislocation of public transport, Chief Crown Prosecutors and HQ Directors should decide what action is to be taken within their Area/Directorate. The arrangements for dealing with such emergencies are contained in Annex 2 to the Department's Travel and Subsistence Code.
- During a national dispute, press briefing and requests for television and radio interviews on matters relating to the central issue will be co-ordinated by the Treasury; Ministers will be briefed to respond as appropriate. However, in these disputes, and more particularly in disputes which affect CPS only, the Department will be responsible for responding to national and local issues which are directly related to the Department's functions. To be effective, any response to misleading media reports should be made promptly. In addition to national media comments, particular attention should also be given to local press and radio comment. The lead in dealing with the media will be taken by the Press Office, which should be consulted on all matters of this nature.
- Advance warning of expected industrial action should be notified to Personnel Directorate by telephone or fax in order that appropriate steps are taken as early as possible. In the event of Department or Civil Service-wide industrial action detailed reporting arrangements will be circulated to Area Business Managers and HQ Directors by Personnel Directorate.
Introduction
Reducing the risk of industrial action
Whitley
Communication
Facilities
The role of line managers
Being prepared for industrial action
Contingency arrangements
Staff communications
Administrative consequences
may have the period of absence treated as sick absence and be granted occupational sick pay, provided the absence is covered by a doctor's certificate or by a self-certificate.
An officer who falls sick while on strike may not have the period of absence treated as sick absence for the duration of the strike and will not therefore be eligible for either occupational sick pay or SSP even if the period of absence is covered by a doctor's certificate.
Work arrangements during industrial action
Areas
Headquarters
Leave during industrial action
Annual leave
Lobbies and protest meetings
Suspension of annual leave
Special leave
Flexible Working Hours
Normal non-FWH times of arrival and departure may be determined by reference to the times which:
Picketing
Additionally, Department for Education and Employment guidelines on picketing advise that pickets and the organisers should in general ensure that the number of pickets does not exceed six at any entrance to a workplace.
Disruption of internal mail and supplies
In certain circumstances, it may be decided that in order to maintain a service and contain the risk of escalation, alternative arrangements should be made for the delivery of mail and supplies for buildings which are picketed. Such arrangements might include:
