Legal briefing: preparing for strike action

The strike by NHS Logistics staff in September was the first nationwide action to hit the health service for 18 years. We have not yet reverted back to the strike-ridden 1970s or 1980 but does this action and the threat of strike action in other areas of the NHS mean that managers need to brush up on how to respond in an escalating industrial relations dispute?

The intention of the strikers was to disrupt supplies across the country. Press reports suggest contingency plans helped limit any impact. The threat of further action against other NHS employers will see health sector employers urgently having to assess their potential impact.

Staff shortages and disruption to services could result in deterioration in the quality of care provided to patients. In addition, negative publicity for the employer surrounding the strike takes its toll on the reputation of the organisation and can be counterproductive to any drive to promote the organisation. The media might remind the public of previous strikes and disputes with staff, perhaps ones which have been resolved years ago. Moreover, the potential cost of industrial action to the employer - at a time when NHS employers are struggling with the current financial climate - is significant.

Staff morale suffers, as non-striking staff left to deal with the consequences become overburdened and disillusioned, while striking staff feel let down by their employer. Recruiting high quality staff becomes difficult, as the promises of excellent working standards sound hollow to potential employees reading about striking staff in newspapers.

So, what can an employer do to deal with the threat of strike action? Employers should consider the following communications, negotiation and legal points when faced with a difficult situation:

• Good communication channels and clearly defined grievance procedures are vital in resolving disputes before they escalate;
• The Advisory, Conciliation and Arbitration Service offers workplace training aimed at preventing disputes from arising;
• If a dispute arises, it is vital to meet with trade union representatives as soon as possible to try to resolve the problem.
• If outside help from an independent agency is required to break the deadlock, ACAS offers an arbitration service designed to help parties reach a settlement before industrial action is taken.
• Face-to-face negotiation with employees can be productive and cost-effective, particularly where this is carried out by trained negotiators. Trade unions can supply negotiators for their members, while some law firms have experienced industrial relations negotiators who can act for employers;
• Be aware of the legal issues surrounding industrial action. To be lawful, a dispute must fulfil certain criteria, and procedures must be followed. For the employer, mishandling of the threat of a strike (for example, dismissing the employees unfairly) will considerably increase the chances of strike action;
• Preparation, preparation, preparation - if all fails and the strike goes ahead, the employer's contingency plans for a continued service will be vital.

Given the government's plans for increased involvement of the private sector, there will inevitably be ideological calls for further collective action. How this affects those plans and the NHS depends on how all parties communicate and negotiate.

Rachael Heenan is a partner specialising in health and the public sector in the employment group of law firm Beachcroft.