Background
This guidance is designed to help managers at the FCA think about their role when colleagues choose to take industrial action.
The dispute that has prompted industrial action is not a dispute between colleagues and it is not a dispute with the firms and consumers who look to the FCA to support them. Union members will strive to conduct themselves in ways that protect the good working relationships that all FCA staff have worked to create.
Most of the questions below relate to how managers can carry out their role during a period of industrial action. Many managers will also be taking industrial action and the guide includes some questions about how to deal with this.
If you have a question that isn’t answered here please contact your HR representative or email Unite at uniteatFCA@gmail.com.
What’s the purpose of industrial action?
Unite members are considering taking industrial action with three objectives in mind. These are:
1. To get ExCo to hit the pause button on their proposals to cut our pay, limit our careers and subject us to an unfair performance system.
2. To get ExCo round the table in listening mode in order to agree new proposals.
3. To get ExCo to ballot all staff on whether we would like them to formally recognise Unite in our workplace.
The timing and nature of any industrial action will be targeted with these goals in mind. Action will not be designed to cause harm to the consumers and firms who look to the FCA for support.
What happens before staff can take industrial action?
Lawful industrial action requires formally balloting union members (Trade Union and Labour Relations (Consolidation) Act 1992, s.226). The processes around a formal ballot take around 5 weeks, although the voting period is much shorter (e.g. one week). The union will give the FCA certain information in advance before the ballot. A further 2 weeks’ notice would need to be given to the FCA before the industrial action starts (s.234A).
In January, we held an unofficial “indicative ballot” on industrial action which obtained a vote of 87% for “Yes”.
An independent company will send paper ballots to every Unite member at the FCA. Members will be asked to return the ballots by post. The legislation dates from the 1980s and does not allow online voting.
In order for the industrial action to proceed, over 50% of ballots must be for “Yes” on a turnout of over 50%.
The union are required to ensure that they ballot all those who may be called upon to take industrial action, and that they do not ballot those who will not be involved.
What does industrial action mean?
It can mean striking, ‘working to rule’, or both.
Striking means not working. Working to rule means sticking strictly to the letter of our employment contracts.
These options are explained in further detail below.
What if I have concerns that industrial action will impact on the work of my team?
Industrial action will by its nature impact on the work of the FCA, but it is important to remember that this is not a dispute between colleagues. It is a dispute between ExCo and ordinary FCA employees. We have no choice but to use our legal right to withdraw our labour due to the inexplicable refusal of ExCo to compromise on their current damaging proposals. We do not want this situation to last for a moment longer than necessary.
It would be prudent that you assess the likely impact of industrial action on your team. Take time to think about what information you need and where you should get that information from. The union is under an obligation to provide certain information to the FCA. You should address questions about the possible scale or nature of industrial action to your HR representative.
You may re-allocate work to those staff who are not taking part in industrial action and who have capacity to do it. As with any work assignments, these should be reasonable, within the capabilities and experience of the employee concerned and within the scope of their contractual duties.
Some of the people who work with the FCA may not be covered by the call for industrial action: that is, consultants or agency workers who are technically self-employed or employed by a third party. Your HR representative should be able to tell you about any staff that are not covered by the industrial action. People in this group are required to work as normal during industrial action and every support should be given to enable them to do so.
Under certain circumstances, unions may agree to tell specific members not to take industrial action. However, unions will typically agree such exemptions only where industrial action would pose an immediate risk to people’s safety and where there are no practical alternatives to mitigating this risk. If you think that industrial action may have a serious impact of this sort on the services you are responsible for then raise this with your HR representative. The process of agreeing exemptions takes time, and it is therefore important that any such requests are made as soon as possible.
What can I say to my team about industrial action?
It’s possible that this will be the first time that you have had to talk to your colleagues about industrial action. Union members will be seeking to conduct themselves in ways that protect the good working relationships within the FCA. We ask you to consider how you can take every opportunity to engage with staff in ways that strengthen longer-term employee relations.
The right to take industrial action is an important legal and civil right, like the right to vote. We ask you to try to tailor your conversations with staff bearing in mind the risk that you unintentionally give the impression that staff will be judged negatively for exercising their lawful rights. If you are not sure of the best way to raise something then tell your staff that and ask them to help you have a productive exchange.
We have trust in the professionalism of our manager colleagues, and we are confident that managers will not be tempted to pressurise union members into not taking industrial action. In the unlikely event that this were to happen, the matter would rapidly escalate over the heads of the people concerned and could end up with legal remedies against the FCA as an organisation.
You may ask your team to give you an indication in advance of whether they intend to take industrial action. Please bear in mind, however, that staff are not required to do this and that it is up to them whether they volunteer this information.
How do I handle requests for leave that coincide with industrial action?
Generally speaking, leave requests should be considered in the same way as they would were the industrial action not taking place.
Staff who report that they are absent because of sickness will be paid as normal, providing that any necessary certification is produced.
It would not be appropriate transfer the impact of staff exercising their legal rights onto their colleagues who choose not to take part in industrial action. Doing so could create a risk that staff have a grievance about the application of the leave policy.
You should address questions about handling leave requests to your HR representative.
What is a strike?
A strike means not working at all. On a strike day, members would not go into the office, log on to FCA systems or answer work-related calls or messages. In return, they would not be paid their salary for that day.
We are considering striking for limited, sporadic periods of time (e.g. between one day and three days). We are not considering a single continuous strike.
What does working to rule mean?
Working to rule means sticking to the letter of the employment contract, in particular the contractual hours.
By way of example, many staff have this wording in their contracts:
“Your normal hours of work are 35 [hours] per week…. The FCA reserves the right to vary your basic working hours at its discretion as necessary to meet operational requirements….”
We interpret “normal” to mean that we are required to work 35 hours in most weeks. Working more than 35 hours is abnormal, and so should not happen in most weeks. We interpret “necessary” to mean truly necessary and not just desirable. It would include, for example, work on urgent measures to deal with the economic effects of Covid. It would not include, for example, work on routine CPs. If you ask staff to work beyond 35 hours, please be prepared to explain to them in writing why this is truly “necessary” and consider how you would respond to any challenge from the union.
Other people will have other wording in their contracts: for example, wording which commits them to work for certain “core hours”. Working to rule means following such requirements to the letter.
Working to rule also means scrupulously insisting on the FCA meeting other legal requirements: for example, on health and safety and on making reasonable adjustments for staff with disabilities.
I am planning to take part in industrial action. Do I need to take any specific steps?
You are under no obligation to say in advance if you intend to take industrial action. However, in the interests of good employee relations, it would probably be desirable if you discussed your plans with your HoD.
This post sets out the views of the FCA branch of Unite. It is not legal advice.
