Last reviewed 20 July 2022
Following strikes held on 21, 23 and 25 June, which caused widespread disruption throughout the rail network, further strikes have been planned by the RMT and Aslef trade unions. These will affect travel once again, and this time with strikes planned for 30 July and 20 August 2022 (both Saturdays), weekend workers will for the first time be significantly impacted.
As we know it now, strikes are planned to take place on:
27 and 30 July
18 and 20 August.
As we have already experienced, these strikes will cause a number of issues for employers in getting their staff to work on time, if at all. This includes not only the day of the strikes themselves but also the following day(s) as trains are moved to where they need to be. Added to this, of course, we also have a red weather warning for the first time in the UK for at least the days before the next strike, which experts say could occur again.
Review the success or failure of previous arrangements
Employers, if they have not already, need to take time now to urgently review how well working arrangements worked the last time they were forced into this position, including taking into account the views of affected employees. Identifying the problem areas now will allow solutions to be discussed and agreed, and if necessary, alternative arrangements put in place.
Below, we identify the key considerations.
What if employees are unable to travel to work?
For those unlikely or unable to get to work as a result of the strike action, organisations can speak to these employees and discuss whether alternative arrangements can be made for the working day. It may be that these employees already work in a hybrid way and can simply change their days at home for the planned strike days. Alternatively, they could:
work from home — many employees may already be able to do this due to working from home during the pandemic
agree a period of annual leave
enforce annual leave
agree to use any banked time off in lieu.
Organisations who wish to enforce annual leave have to give the correct notice: twice the length of the annual leave to be enforced, eg two days’ notice to enforce one day of annual leave. As such, employers looking to go down this route will need to plan the timing of forced annual leave and ensure correct notice is given. Employers looking to do this for the strikes later in June need to therefore act quickly.
Alternatively, organisations may wish to arrange a temporary period of flexible working with staff to start or finish outside normal working hours as their commutes are likely to be adversely affected by an amended transport timetable.
Where the above options are utilised, the employee is entitled to be paid as normal as they will be able to perform their contacted hours or use authorised leave.
What options do organisations have for employees who are late due to the strikes?
Employees who are lucky enough to commute on a trainline which is not closed completely will be competing with other travellers for space on severely reduced timetables. Staff who drive to work or use other forms of public transport could experience knock-on impacts of there being no trains. Roads will likely be busier than usual, as will bus/tram/taxi companies. Employees should be encouraged to make appropriate allowances to make sure they get to work on time, eg leave earlier/plan to get a bus, etc. Reasonable leniency should be allowed for staff who are late to work due to the travel disruptions.
There is an element of choice for organisations in how they wish to tackle this matter. In the very unusual circumstance that there is a contractual right to be paid for lateness, employees who are late because of the strike action are entitled to be paid for any time they miss. Otherwise, they are not.
Some employers operate a system of “rounding up” in the case of employee lateness, whereby, for example, they only pay on the half hour, so an employee who is 10 minutes late for a two o’clock shift will not get paid until 2.30pm. This can impact on an employee’s morale, especially where the lateness is not their fault. It can also be an unlawful deduction of wages, as the employee is not being paid for all of the time that they work. If the employee is paid close to or exactly national minimum wage (NMW), this would also cause their pay to dip below and the employer would be in breach of NMW rules. Clauses of this nature are known as “penalty clauses” and are not enforceable in an employment law context.
Organisations may instead agree with employees that they can work the time back, either on the same day or at a later date, to ensure employees are not losing out on pay. If the employee is agreeable to this, it may be the best solution. Other possible solutions could be to arrange a temporary period of flexible working so the employee can start/finish outside of normal hours, as this might make it easier for them to access other forms of transport. Employees could also look at car-pooling arrangements.
Employers may also decide to treat these absences differently to other types of lateness, as they are not the fault of the employee, and the employee may not have other options such as driving or arriving at a different time (for example, if they need drop children at school or childcare). They can disregard the lateness but, if they do so, this should apply consistently to all employees who are similarly affected and may set an expectation that similar strikes will be treated in the same manner.
What happens if employees’ childcare arrangements are affected?
It may be that strike action causes schools and childcare settings to close, or limit their capacity, due to staffing or other issues. In these circumstances, employees have a statutory right to take unpaid time off for dependants to cover the time needed to put in place other arrangements. In most cases, leave of one or two days is sufficient, but this will depend on the circumstances of each employee. If this is anticipated to be a problem, discussing the matter sooner rather than later can prompt the employee to source alternative care or make other arrangements for their work.
What if the heat affects employees plans?
Whilst it is forecast that the weather will start to cool from Wednesday 20 July, it would be prudent to consider what will happen if the weather warning is extended or occurs again over future strikes. Some employees may not have access to a suitable environment to work in from home in extreme weather (for example, they may have a garden office that could reach temperatures dangerous to their health), so switching to homeworking until the strike is over may not be appropriate.
Many will also be looking forward to attending the office for the air conditioning, a luxury few can afford in their own home and therefore may become disgruntled at the suggestion they stay away for the day.
As such, employers will need to work with employees to find a sensible solution that suits both parties.
The impending strike action may well cause employees mental, physical or financial distress, especially as the cost-of-living crisis continues. Organisations are therefore encouraged to act reasonably with their staff, as the situation may cause upset and tensions to grow within the workforce. Any additional assistance that can be offered, such as temporary loans of equipment or even money, access to an Employee Assistance Programme, or signposting external mental health or financial support, will help employees’ overall wellbeing and, in turn, preserve, as much as is possible, productivity and commitment to the organisation. Employers should think carefully before taking any disciplinary action for absence or lateness caused by the rail strikes. A full process should be followed in line with normal rules, but reasonable flexibility should be afforded since it is not their fault. Staff who are obviously late for other reasons (eg slept-in, etc) can be managed as usual.