BBC free-speech saga

BBC free-speech saga

International Employment Lawyer

“Technically, any employee or worker who goes on strike – whether that is official industrial action, having followed the proper statutory process, or an unofficial, heat-of-the-moment walkout – is likely to be in breach of their contract of employment by refusing to work,” says GQ|Littler partner Philip Cameron.

“But for the existence of trade union law, this would most likely give an employer the legal grounds for a misconduct dismissal. When considering what options employers have in mass walkout scenarios, it is therefore crucial to first understand whether these employees, in whole or in part, benefit from the protection of trade union law.”

“The law is clear that employers are immune from unfair dismissal claims in this situation, as long as the employee was taking part in an unofficial strike at the time of dismissal – so timing is important,” adds Cameron. “Contrast this with employees who take part in protected industrial action, who are protected from suffering, detriment, or being dismissed due to taking part in such activities.”

Similarly, when dealing with genuine independent contractors, as many of the BBC’s reporters appear to be, many of these legal protections will also not apply.

“A pure independent contractor will not be able to bring a claim against their client for detriment or dismissal because of taking part in trade union activities, nor will they be able to bring an unfair dismissal claim,” says senior associate Chris Coombes.

“However, employers should think carefully before jumping to this conclusion. Many contractors who are required to personally perform their work – as, for example, Gary Lineker is – could try to challenge their status and bring worker reclassification claims to benefit from trade union law protections, which extends to employees and workers.”

But worker reclassification claims are not the only legal risk. Employers that target strike ringleaders risk discrimination claims from employees who could allege they were dismissed based on a protected characteristic, such as race, age, or sex.

“Although these legal niceties may be interesting to employment lawyers, the wider business and operational implications of wildcat strikes and unofficial mass walkouts are much more significant, and complicated,” adds Coombes.

“For that reason, these situations tend, more often than not, to be resolved through negotiation and compromise, rather than the courts.”

Employee relations

As the BBC’s weekend crisis demonstrates, employers confronted with wildcat strikes should carefully consider how their response may impact employee relations.

“Why are these employees striking in the first place? Presumably, it is because they are deeply unhappy about a core aspect of their employment. Wherever possible, employers should look to prevent these situations arising by treating the root cause,” says Cameron.

“Actively engaging with employees on a regular basis – for example, through focus groups, appointing employee representatives, conducting engagement surveys – is an effective way to identify a potential problem before it escalates.”

Operational impact

Depending on the number of employees involved, and their roles, organisations should also consider how dismissing wildcats may affect their business operations.

“We have seen from the fallout from the Gary Lineker episode how one person taking a stand can influence many others to follow, potentially causing huge business disruption,” says Coombes. “In these situations, perhaps striking a deal or coming to a compromise is the best solution for the business.”

Reputational damage

Although employers might be legally able to do so, taking a hard line against employees who resort to unofficial strikes can cause reputational damage, especially if the issue they are protesting is legitimate and attracts wider public sympathy.

“The media storm surrounding the BBC – and its subsequent backdown following external pressure and criticism – is a good example of this,” says Coombes.

“Employers in all industries should consider how these situations impact on their external-facing reputation and also how being seen as a ‘tough employer’ could impact their future recruitment efforts.”

Third-party influence

Finally, the influence of third-party organisations – such as the Professional Footballers’ Association backing of players who refused to talk to the BBC last week – is also worth considering.

“If a third party, such as a recognised union or a more informal association, encourages employees to stage a walkout without following the proper statutory procedures – balloting, voting, garnering the required turnout and level of support – then they are potentially liable for inducing a breach of contract,” explains Coombes.

“The employer of the striking employees could then take legal action against the third party and seek damages for any losses it suffers as a result of the walkout. If the proper statutory procedures have been followed, then the union may be immune from such liability.”

Read the full article here.