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Created: 18 August 2016 | Last Updated: 09 September 2016 | Printer Friendly Version Printer Friendly Version | Make Text Smaller Make Text Larger |

Statutory Ballot & Strike Action - FAQs

Questions. 

Q1. What is a statutory ballot? 
Q2. What happens if there is a YES majority in the statutory ballot for Industrial action?
Q3. What happens if there is a NO majority in both questions of the statutory ballot?
Q4. What is involved in taking strike action?
Q5. What is involved in taking Industrial Action Short of Strike Action (ASOS)?
Q6. Who is eligible to take industrial action?
Q7. Can you join the EIS today and still take part in the strike action?
Q8. Can my employer sack me for taking strike action?
Q9. What is the effect on pay of taking strike action?
Q10. What is the effect on pay if the strike day is on a ‘short day', i.e. for a part-time lecturer?
Q11. What is the effect on pay for carrying out Action Short Of Strike Action (ASOS)?
Q12. Does a day of strike action count as a break in my employment?
Q13. What is the legal position?
Q14. Do I have to inform my employer/head of department that I am going to take strike action?
Q15. Do I have to inform my employer/line manager if I am not going to take strike action?
Q16. If I voted yes to strike in the ballot am I then legally required to strike?
Q17. Are any members exempt from taking strike action?
Q18. If I am sick on a day of strike action, what do I have to do?
Q19. If I am on annual/maternity/paternity/family leave what do I have to do?
Q20. What happens if I am job-share or part-time and I do not work on the day of strike action?
Q21. Am I required to picket my workplace?
Q22. If I am in my last year of work before retirement how will taking industrial action affect me?
Q23. Will a day of strike action affect an application for "Winding-Down"?
Q24. I have been told that I can buy a day's pension after strike action. Is this correct?
Q25. How do I find out more information?

Q1. What is a statutory ballot?

A statutory ballot is the ballot a trade union holds amongst affected members to determine whether there is sufficient support for strike action – currently only a simple majority is required.
The statutory ballot is regulated by law – must be a postal ballot, anonymous and independently administered.

Q2. What happens if there is a YES majority in the statutory ballot for Industrial action?

If there is a clear YES majority, then we will work with other trade unions to plan a campaign of industrial action. If there is strike action then we will have to notify the employers of strike action within 21 days, the strike action would follow 7 days later.

If there is a Yes for strike action only, then only this will be planned for. If there is a Yes for Industrial Action Short of Strike Action (ASOS) only, then only this will be planned for. If there is a Yes for both questions in the statutory ballot, then a campaign will be planned incorporating both strike action and action short of strike action.

It is possible that the pressure caused by a clear YES vote with a high turnout may also lead to further negotiations from the employers.

Q3. What happens if there is a NO majority in both questions of the statutory ballot?

If there is a NO majority or a small turnout then industrial action cannot be progressed. The trade dispute would be ended and we would have to accept the employers pay offer for 2016-17.

Q4. What is involved in taking strike action?

Strike action involves removing your labour by refusing to work on the day in question. This means that you are in breach of contract- but the law prevents you from being dismissed for the first twelve weeks of strike action.

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Q5. What is involved in taking Industrial Action Short of Strike Action (ASOS)?

Industrial action involves refusing to do certain work whilst attending work or after work. This means that you are in breach of contract- but the law prevents you from being dismissed for the first twelve weeks of strike action.

Examples of ASOS previously carried out by the EIS are; non-marking of assessments, not entering or returning assessment marks, boycott of all assessment, not reading emails after contractual work hours e.g. between 6pm and 9am. Other actions are possible for EIS members, such as not filling in attendance sheets for students.

Q6. Who is eligible to take industrial action?

Members of the EIS that are covered by the trade dispute that the statutory ballot pertains to, in this case EIS members working in Scottish HEIs covered by the New JNCHES negotiations – i.e. all except SRUC, UHI and RCS.

Q7. Can you join the EIS today and still take part in the strike action?

Yes. If you are eligible (see FAQ above) to take part in the strike action and as long as your fully completed application form and direct debit mandate has been received by EIS HQ prior to the day of action you can take part in the strike action.

Please note that application forms cannot be accepted by fax or email. Click here to join the EIS online now.

Q8. Can my employer sack me for taking strike action?

If your employer dismisses you for taking part in a legal strike (within 12 weeks of the start of the action), this would be unfair dismissal and the EIS would support you.

Q9. What is the effect on pay of taking strike action?

Strike action involves removing your labour by refusing to work on the day in question. If you withdraw your labour for a day then your employer has no obligation to pay you for that day. You will not be paid for the day you are out on strike.

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Q10. What is the effect on pay if the strike day is on a ‘short day', i.e. for a part-time lecturer.

Staff paid on an hourly rate should expect to lose the payment for the hours they are contracted to work on the day in question.

Q11. What is the effect on pay for carrying out Action Short Of Strike Action (ASOS)?

Some Universities have previously advised staff that if they do not carry out a specific task then they will reduce pay by an arbitrary amount, such as 30%.

Some Universities have previously advised staff that they will not accept partial performance and will not pay staff at all if they carry out ASOS. (The usual response to this is to go on strike since there would be no financial loss to do so).

Some Universities take the view that threatening deductions to staff is counterproductive to them and seek to work around the ASOS.

The law around pay deductions for ASOS is not entirely clear although most precedents favour employers. Staff paid on an hourly rate should expect to lose the payment for the hours they are contracted to work on the day in question.

Q12. Does a day of strike action count as a break in my employment?

No, being on strike does not break the service of any employee, including employees on temporary contracts.

The Employment Rights Act provides that continuity of employment is not broken by strike action (s.216 (1) and (2)). In other words, any day on which an employee is on strike is not counted in the period of continuous employment but it does not break continuous employment.

Therefore, strike action does not break the period of continuous employment for acquiring statutory employment rights or contractual rights. Contractual rights which are unaffected by strike action are salary placement rules, qualifying periods for maternity and adoptive leave, sick pay entitlement, and service to acquire permanence and service for compulsory transfer purposes (as agreed locally).

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Q13. What is the legal position?

There is no right to strike in UK law. However, there is statutory protection for trade unions.

In common law an employee who takes part in strike action will almost always be in breach of his or her contract of employment. However, protection for individuals who take part in official strike action is set out in the Trade Union and Labour Relations (Consolidations) Act. Under (TULRC)A, s.238(A)2, any employee dismissed for taking industrial action shall be regarded as being unfairly dismissed if the strike action is protected (i.e. lawful).

Q14. Do I have to inform my employer/head of department that I am going to take strike action?

The EIS notifies employers that our members are taking strike action; individuals are not required to do so. You have no personal obligation to inform your employer or head of department of your intention to take strike action.

Q15. Do I have to inform my employer/line manager if I am not going to take strike action?

Your employer should inform you of any notification procedures to be followed in the event of you deciding not to take strike action. If this is your intention you should check with your employer. However, we hope all members will support the democratic decision of the membership as a whole and demonstrate their professional commitment to colleagues by taking part in this strike action. It is up to all of us to take action to protect our pay.

Q16. If I voted yes to strike in the ballot am I then legally required to strike?

Voting to support industrial action in any ballot does not legally bind an individual to take action. However, you should come out on strike to support the democratic decision of the membership as a whole and to demonstrate your professional commitment to colleagues who will also be taking part in the action.

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Q17. Are any members exempt from taking strike action?

Exemptions are normally only granted in exceptional circumstances, for example in the case of a pregnant lecturer whose maternity rights might be negatively affected by taking strike action.

Q18. If I am sick on a day of strike action, what do I have to do?

It may be that employers will suspend the right of individuals to report absence or to self-certify on the day of strike action. It is likely that a staff absent from work may have to provide medical evidence of illness on that day or face the risk of an employer withholding pay.

Q19. If I am on annual/maternity/paternity/family leave what do I have to do?

As you are on leave you cannot at the same time be on strike and should not lose pay.

Q20. What happens if I am job-share or part-time and I do not work on the day of strike action?

If it is not a working day for you then you cannot take strike action on that day.

Q21. Am I required to picket my workplace?

No, a branch may decide to form a picket. Picketing is tightly defined in law and should take place at or near your place of work and is confined to seeking to persuade those party to the dispute to take part. The conduct of pickets is tightly defined in law.

Q22. If I am in my last year of work before retirement how will taking industrial action affect me?

Being on industrial action for 1 day will mean that your total pensionable service would be 1 day less. It would not affect the pensionable salary on which benefits are calculated. On a pensionable salary of £35,000 your annual pension will be around £1.20 less. There is no additional loss/impact for those who are nearing retirement.

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Q23. Will a day of strike action affect an application for "Winding-Down"?

It would be unusual for the SPPA to turn down a request for winding down on the basis of 1 day's missing service whether this be for industrial action or any other day of unpaid absence. Normally discretion would be used to allow the application to proceed. For more information on the Winding Down Scheme please go to our info/leaflet.

The USS has different terms to the SPPA pensions.

Q24. I have been told that I can buy a day's pension after strike action. Is this correct?

The entitlement to buy back one day's pension only applies to those in Local Government Pension Schemes. It does not apply to those in the Scottish Teachers' Superannuation Scheme or the USS. However, by working an additional day beyond your intended retirement date, you will be able to make good the day's pensionable service.

Q25. How do I find out more information?

Keep visiting the EIS website for the most up-to-date information, or speak to your EIS-ULA Representative, Branch Secretary or contact EIS HQ- F&HE office – at EKemp@eis.org.uk or 0131 225 6244.

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