How did we get here?
We are preparing to take industrial action against Exco’s current proposals to cut our pay, to limit our careers and to subject us to an unfair performance system. The proposals will damage the FCA and ultimately the public whom we serve.
Industrial action is a last resort. We’ve tried reaching out to ExCo. We’ve even written to the FCA’s Directors and to MPs. As a last ditch effort, we recently invited ExCo to engage in talks through the official mediation service, ACAS. But ExCo’s response is always the same: “No”. The SCC has worked hard to scrutinise ExCo’s actions and to raise criticisms of them, but as it is an internal, management-led committee it cannot ultimately stop them.
We believe that this is no way for a respected public body to treat its employees. Industrial action gives us a chance to make our voice heard.
What is industrial action?
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.
This sounds scary. Isn’t it an extreme option?
Industrial action is not unusual. The ability to take industrial action is an important civil right, like the right to vote, which previous generations secured for us. We have a legal right to withhold our labour, and we would have legal protections in the unlikely event that the FCA attempted to take reprisals against us (see below).
The fact is that sometimes employees of public bodies do find it necessary to take industrial action in order to defend their interests. Unite members went on strike at the Bank of England in 2017 over essentially the same issues as we are faced with now. That strike was successful and Unite now has a good relationship with the Bank’s management.
What are our goals for industrial action?
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.
How do we decide whether to take industrial action?
In January, we held an unofficial “indicative ballot” on industrial action which obtained a vote of 87% for “Yes”.
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). A further 2 weeks’ notice would need to be given to the FCA before the industrial action starts (s.234A).
How will the formal ballot on industrial action work?
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%.
Should I be worried about what will happen to me if I take industrial action?
Normally, if employees refuse to do their work, the employer may be able to dismiss them. But if we are participating in lawful industrial action, it is unlawful for the FCA to dismiss us (Trade Union and Labour Relations (Consolidation) Act 1992, s.238A). In practice, employers don’t normally try to do this anyway.
There are also other legal protections available, including general statutory protection for being involved with a trade union; protection for holding trade unionist views; and the employer’s overarching duty to maintain trust and confidence with employees (which remains in force when they are taking industrial action).
In the unlikely event that you are pressured or penalised by anyone because you are a union member or you intend to take industrial action, please contact a branch officer immediately and we will escalate the matter and pursue whatever legal remedies are appropriate.
What is a strike?
A strike means not working at all. On a strike day, members would not log on to FCA systems, answer work-related calls or messages, or go into the office.
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.
As we do not work on a strike day, we will not be paid our salary for that day. Unite offers a minimum level of strike pay, which may be of assistance to members in difficult financial circumstances.
A strike may cost that day in wages but will win visibility and publicity, bringing ExCo to the table quickly.
What does working to rule mean?
Working to rule means sticking to the letter of our employment contracts, in particular our contractual hours.
The FCA is reliant on the huge amount of extra hours we put in each week to function. Withdrawing this unpaid labour could mean that it is valued and not taken for granted.
By way of example, many of us have this wording in our 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 members are asked to work beyond 35 hours, they should ask the person giving them work to explain in writing why it is “necessary”, and the union will challenge the explanation if it is inadequate.
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.
What should I say to my line manager?
Your line manager may be a union member, as we have a significant number of managers (and even HoDs) in our membership. Alternatively, they may have been a union member and/or have taken industrial action in a previous job.
You are not legally required to give advance notice to your manager (or anyone else) that you are taking part in industrial action. What you tell your manager and when will be a matter for personal judgement. Having said that, the proposed industrial action has been well publicised, so your manager is probably already expecting at least some of their team to be involved in it. So it should come as no surprise if and when you tell them that you are exercising your legal right to participate in it.
We trust the professionalism of our manager colleagues and we consider that the great majority of them will accept that members of their teams have the right to take lawful industrial action, whatever their personal views might be. Indeed, it is likely that the FCA’s own HR team would rein in any managers who unlawfully mistreated union members (as this would expose the FCA to legal liability). In the unlikely event that you receive any mistreatment, you should inform the branch officers immediately.
What should I say to my colleagues?
If work by union members goes undone, it may fall on other FCA colleagues. Members may understandably be troubled by this – but we must keep in mind that the ultimate responsibility for the industrial action and its effects lies squarely with ExCo. Colleagues are free to join the union and free to participate in the industrial action.
Members should not be tempted to be hostile to colleagues who work through industrial action. Any inappropriate conduct in this regard (e.g. using terms such as “scab”) will not be tolerated by the branch.
This leaflet sets out the views of the FCA branch of Unite. It is not legal advice.
If you can’t find the answers you want contact Unite at the FCA at uniteatfca@gmail.com.
