From the Petty to the Vicious, Bosses are Penalising Striking Workers
In Britain, there's no formal protection for staff whose employers make life difficult for them because they've been on strike – another way our laws put bosses' interests above workers' needs.
Royal Mail postal workers hold placards and chant slogans on a picket line outside a delivery office in North London on 8 September 2022. (Justin Tallis / AFP via Getty Images)
This summer, Arriva bus drivers across the North West went on strike for 29 days, fighting for better pay amid a cost of living crisis. The action won a significant pay rise—a morale-boosting victory not just for other workers in the North West engaged in similar battles, but for bus drivers across the country fighting a real-terms pay cut. Just last month, Arriva bus drivers in London and the Eastern region also won above-inflation rises.
But in September, following that victory, striking bus workers in Merseyside received a letter from Arriva Operations Director Howard Farrall informing them that they would have their annual leave entitlement for 2022 reduced by two days. As reported in the Liverpool ECHO, Farrall wrote: ‘Further to the recent period of industrial action and considering the current cost of living crisis we all face, the business has taken the decision to try and limit the financial impact of reconciling individuals’ Annual Leave following the recent strike.’
It seemed workers were being punished for their successful industrial action. Unite’s regional officer Dave Roberts referred to the decision as an extremely retrograde step. ‘If the company is interested in rebuilding industrial relations and improving morale and productivity among its workforce,’ he said, ‘this is not the way to achieve it.’
Retaliation for workers taking industrial action, or even the intention of taking it, is not unprecedented. In the same month, workers at the Polyflor factory in Manchester’s Whitefield voted overwhelmingly to take action over another real-terms pay cut: a series of two-hour stoppages, one to take place each week for four weeks. But shortly before the action was set to begin, the company suspended the shifts of its entire workforce, claiming that the planned stoppages were so ‘significantly problematical’ that the whole factory had to shut to be shut down. For some time, they gave no indication of when they would be able to return to work.
Other examples abound, ranging from the petty to the cruel. UCU members at Queen Mary, University of London (QMUL) engaged in a marking boycott were threatened with the closure of the Film Studies degree programme entirely in July. In an email sent to staff, Principal Colin Bailey said that QMUL ‘can’t take new students onto programmes where staff refuse to deliver the promised education.’ The university also withheld 100% of 21 days’ worth of wages for staff who had engaged in the marking boycott. The same month, just before the start of the BT strike, some CWU members found their access to workplaces in the BT Tower had been revoked without warning or explanation.
In September, during the ongoing dispute surrounding the terms and conditions of postal workers, Royal Mail has sought to rip up agreements with the Communication Workers’ Union completely, signalling its intention to derecognise the union. In a letter to the CWU, Royal Mail declared plans to change its relationship with the union from one of negotiation with workers’ representatives to that of ‘consultation’. As recently as this month, Stagecoach bosses have been accused of a ‘vindictive move’ for blocking free travel passes for families of striking drivers.
Whether it’s cutting annual leave, suspending shifts, or attacking workers’ unions outright, employers can penalise strikers because they know Britain’s anti-worker government will let them get away with it.
Britain’s Anti-Worker Economy
Striking workers are protected from unfair dismissal in this country—you can’t legally be sacked for striking. But there’s little in law to say bosses can’t make employees’ lives difficult in other ways.
There was a challenge to that culture of impunity in 2021: disciplinary action against those who go on strike was deemed unlawful following a judgement at the employment appeal tribunal (EAT) over a case taken by care worker Fiona Mercer against her employer, the Alternative Futures Group (AFG).
Mercer, who had been involved in a long-running dispute over AFG’s plans to cut payments for sleep-in shifts undertaken by its care staff, was suspended and prevented from going into work by her employer—actions which she understood to have the goal of intimidating her and discouraging strike action. Unison, her trade union, successfully argued that such disciplinary action broke Article 11 of the European Convention on Human Rights, which protects workers involved in legal disputes with their employer. The EAT president said that UK law was not compliant with international law and added wording to the Trade Union and Labour Relations (Consolidation) Act 1992 so that striking workers were protected from disciplinary action short of dismissal in the case of industrial action, as well as dismissal itself.
It was an important victory. Unfortunately it was also a short-lived one. Kwasi Kwarteng, Secretary of State for Business, Energy and Industrial Strategy at the time, appealed the decision, and in March 2022, the Court of Appeal overturned it. While acknowledging that the failure in legislation to protect against any sanction for industrial action apart from dismissal could put the UK in breach of the ECHR, the court concluded that these were issues of policy in a highly sensitive area and therefore best left to parliament.
Leaving the rights and protections of workers to a parliament completely divorced from the struggles of working people has been as disastrous as it sounds.
Overhaul the Anti-Union Laws
The worst consequences of the government’s approach were laid bare in March, when P&O ferries pre-empted the strike ballot that almost certainly would have followed formal mass redundancy announcements by sacking their entire workforce over Zoom instead. 786 officers and crew on their ferries—many of whom had worked on the ships their whole lives—were told to vacate their vessels immediately; a private security firm, Interforce, was instructed to physically remove anyone who was non-compliant. They were then replaced with agency workers on much lower wages and far worse terms and conditions.
This action, dismissal, was illegal, and P&O knew it—but they got away with it anyway. The government’s so-called ‘opposition’ was confined to rhetoric: it would go on to ignore a parliamentary vote to bolster employment rights to prevent such a situation arising again. This was a clear green light to bosses to use whatever tactics they like to grind workers down.
This is the reality that various moves to intimidate and discourage workers and their trade unions reflect: the drastic power imbalance between employers, who enjoy impunity, and workers who are punished for exercising their most basic rights. Whether by turning a blind eye to already illegal activity, watering down existing protections, or in the pursuit of even more pernicious anti-trade union laws—including the latest Transport Strikes (Minimum Service Levels) Bill, by which the government is joining in penalising rail workers for this year’s strike action—ministers, time and time again, have proved they are on the side of bosses, not workers.
The Court of Appeal’s ruling on action short of dismissal shows we cannot rely on case law, subject to interpretation and therefore balanced on incredibly weak foundations, to protect those rights. Appeals to fairness and corporate responsibility have proved time and again not to be enough: companies will continue to penalise workers as long as they know they can get away with it. Now more than ever, as prices continue to rise and pay stagnate, we need a complete overhaul of our labour laws to strengthen worker power: undoing restrictive ballot measures, lifting the ban on secondary action, and properly outlawing punitive employer responses.
Without that, workers will be kept on the back foot through any means employers can find—and the high wage, high growth economy those in power claim to dream of nothing more than a fantasy.