Rail Strikes: Managing staffing issues caused by impending industrial action

With the impending national rail strikes set to commence this week, millions of rail commuters could find their usual travel plans being significantly disrupted. 

The National Union of Rail, Maritime and Transport Workers (known as the 'RMT') have confirmed that a planned walk out will take place on 21st, 23rd and 25th June and have described it as the “biggest outbreak of industrial action in the UK since 1989.”  The action is said to involve as many as 50,000 workers on at least one day of the action (21st June) when the London Underground staff are also taking part, and on the other two planned days, some 40,000 staff are said to be involved.  

The RMT have suggested that the disruption could in fact last for months if their demands are not met.  The sheer size and scale of the proposed strikes means it is almost certain that any employees that commute to work using the rail network are likely to be affected, but in addition, it is likely that we will see some knock on impact for those travelling by road also.

For employers, particularly those who rely heavily on a workforce that commutes via rail, this could cause direct disruption to their operations when staff may be physically unable to get to work. 

Danielle Lister, Partner and Head of the Employment Department at Chattertons Solicitors considers what employers can do to mitigate and manage the impact on organisations affected by the industrial action.

The legal position if an employee cannot get to work

Legally, employees are responsible for getting to their workplaces on time in line with their contractual requirements.  Thus, they have no right to be paid for a missed day of work if the workplace is open and work is available for them.  This is the case even if their absence is due to external factors such as industrial action taking place.

In addition, strictly speaking a refusal to attend for work or an employee's unauthorised absence could constitute grounds for disciplinary action.  However, such a step is not recommended as a result of short term travel disruption and employers are encouraged to work with their staff to resolve or mitigate the impact this may have. 

Where there is an external issue genuinely affecting an employee's ability to attend for work, disciplinary action by the employer may be considered an unreasonable step for an employer to take.  Instead, the focus should be about early planning and preparation, and considering how usual working arrangements can be modified on the affected day to accommodate for the difficulty that the employee is likely to face in having to attend for work. 

Preparation

Like most situations, preparations is key.  Some employees may anticipate not being able to get to work at all in view of the situation affecting the rail network.  Employers should try and prepare for this. 

It would be sensible to identify who in your organisation may be affected, and talk to them about their travel plans on affected days.  Reasonable efforts should be made to work with employees to accommodate alternative arrangements as a solution to (hopefully) what is a very rare situation. 

What are the employer's options to manage the situation?

Employers should consider whether working from home is a possibility; a much more common occurrence following the pandemic and something which may be an easy resolution for many employers and employees as a special/one off arrangement on the particular days that strikes will be taking place. 

Other options may be to allow for a one off change to working hours to allow staff to come to work late and/or leave early, in view of the disruption. Where people are urgently required to be in the office and are likely to be affected by the strikes, consideration could be given to funding overnight accommodation for employees.  This is not mandatory for an employer to do, but may resolve a situation if it is felt that employees absolutely have to attend the office but are likely to be affected. 

Annual leave may be used as an alternative option, but where this is 'enforced' by the employer, sufficient notice needs to be given to employees.  A day off in lieu may also be an alternative compromise.

Given the (hopefully) short term nature of any industrial action, the most effective course of action is likely to be working with employees and reaching compromises to resolve any anticipated difficulties.  This should also assist in terms of staff morale, in terms of employees feeling like their employer is being reasonable and trying to accommodate the difficulties as far as possible.

Where industrial action becomes a longer term possibility (as has been alluded to with the forthcoming RMT strikes), employers will need to consider if their short term responses and compromises are appropriate for the longer term management of the situation, or whether longer term alternative solutions will need to be considered.  This is particularly important when other knock-on effects are considered, such as the risk of losing staff if the strikes continue long term, childcare issues if the strike could prevent employees getting home on time in time to collect their children from childcare, or staff wellbeing concerns, in terms of the stress caused by the travel chaos that could ensue.

Company Policy

Like for so many issues associated with Employment law, it is always sensible to have a Company policy in place for travel disruptions.  Staff should not be subject to unreasonable disciplinary action if industrial action genuinely means they may be unable to attend for work. 

Employers are best advised to think creatively as to how to resolve any issues and try and work with their employees to mitigate any likely knock-on effects. 

A Company policy about such matters will make clear the Company's position on its expectations when such events arise, and particularly on important matters such as paying staff where they miss work due to travel disruption. This is particularly the case where it is intended that an employee will not be paid if they cannot get to work; as managing employee's expectations around the issue is likely to result in fewer workplace disputes arising. 

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If you are an employer, or employee who needs guidance on any of the above matters, we are here to help.  Please do not hesitate to contact our friendly Employment Law team on 01205 351114 or 01636 593505.