By Marcus Leach

The coordinated nationwide ‘day of action’ on 30 November 2011 threatens to disrupt public services across the UK.

Most of the UK’s largest unions - including Unite, UNISON, GMB, NAHT and NASUWT - have held ballots on the potential industrial action which could result in as many as three million public sector workers striking. The strike action is in response to the Government’s proposed changes to public sector pensions.

The main concern for private sector employers is that many employees may be forced to miss work due to school closures, disruption to public transport and disruption to air travel.

Employment lawyer Ben Thornber — a partner at Birmingham law firm, Martineau — questions whether employers should pay employees who fail to attend work because of the strikes?

“Some employees will go to extraordinary lengths to attend work, as many employers discovered during the extreme weather conditions earlier this year,” said Thornber.

“Unfortunately, there are others who will either find it impossible to attend work or will use the public sector strikes as an excuse to take an extra day of leave. But should employers pay employees who fail to attend work?

“Unless there is an agreement to the contrary, employers are under no obligation to pay employees who fail to attend work because of public transport disruption. Further, although employees have the statutory right to take a ‘reasonable’ amount of leave to care for dependants, for example because of a school closure, the employee is not entitled to be paid for this leave.

“That said, many employers will happily pay employees if they are genuinely satisfied that the employee could not attend work. However, care must be taken if an employer decides to treat absent employees on a case-by-case basis, to ensure any one employee (or a group of employees) is not treated less favourably than another for a discriminatory reason. Consistency is key.”

So what can employers do to prepare for a national public sector strike?
Employers would be well advised to consider if they have the right contingency plans in place to manage the impact of a national strike.
To prepare, employers should:

· have a plan to ensure that the business can function effectively if a large number of staff cannot attend work;
· consider giving key employees the ability to work from home;
· make it clear to staff the circumstances in which they will or will not be paid if they cannot make it into work;
· ensure that staff are aware that they must promptly notify their line manager if they find that they cannot make it into work;
· advise employees to plan ahead and consider whether they need to make alternative travel and child care arrangements; and
· consider allowing employees to take their holiday entitlement on the day of the strike, if they believe that they will struggle to attend work (though this is likely to be attractive to staff only if they will not be paid if they do not attend).

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