Q&A: Taking industrial action

18 April 2008

With many of our members engaged in industrial action we look at the law surrounding this, answering some of the most commonly asked questions.

Legal questions and answers

Q. Do we have a right to strike?

Q. What constitutes industrial action?

Q. What about picketing?

Q. Can the employer withhold pay?

Q. Can we claim unfair dismissal?

Q. Do the statutory dismissal and disciplinary procedures apply?

Do we have a right to strike?

Under UK law, there is no right to strike. It is seen as a privilege and the rights of the individual are limited. Some forms of industrial action will breach the employment contract.

In Abbas and others v Gate Gourmet London Limited 2005, a group of employees gathered in the staff canteen and then refused to work. This amounted to unofficial industrial action, as the union had not authorised or endorsed the action.

The employer informed the employees that they would not be paid for their shift and would be summarily dismissed without the right of appeal if they did not return to work.

The employees were given three warnings and then dismissed summarily. The employees who did not attend for work that day or the next were also dismissed. So was the employer entitled to do this? The short answer is yes, although it is being argued that many of the employees dismissed did not take part in the action and therefore that they were dismissed unfairly.

The trade union who organises the action can also commit a tort of inducing a breach of contract. The implications of industrial action can therefore be serious and should be considered before action is taken.

What constitutes industrial action?

In order for any action to be ‘official’ – whether it is a strike or industrial action short of strike – then it must be authorised (before the action takes place) or endorsed (if the action is ongoing) by each of the unions in the workplace.

During the first 12 weeks of official and legal industrial action, the action is deemed to be ‘protected’. In order for this, the following conditions must be complied with:

  • The dispute relates to a ‘trade dispute’ between workers and their employer and negotiations have been exhausted
  • A secret postal ballot has been held – each member of the union who is likely to be induced into taking industrial action should be allowed to take part in the ballot. The majority of members voting must support the action
  • Detailed notice about the action has been given to the employer at least seven days before it commences.

So there is no protection if the industrial action is:

  • Unofficial
  • In support of workers of another employer (secondary action) or someone who has been dismissed for taking unofficial action
  • Has been called by a union but is unsupported by a ballot
  • Action promoting 'union labour only' practices;
  • Intimidatory or violent picketing, (which could amount to a criminal offence).

While an employee is striking or is locked out, this time does not count for their period of continuous service. However, the continuity of service is not broken.

The code of practice on industrial action ballots and notice to employers (2005) provides practical guidance to trade unions and employers to promote the improvement of industrial relations and good practice in the conduct of trade union industrial action ballots. The code is admissible in evidence but imposes no legal obligations on the parties.

What about picketing?

There is no lawful right to picket. However, peaceful picketing has rarely been interfered with as a practice provided that it is done in a peaceful and non-intimidatory manner.

There is a code of practice on picketing (1992) which is admissible in evidence and recommends that there should be a limit of six pickets on each entrance, so as to limit the potential for disorder and violence.

Can the employer withhold pay?

If there is a strike or industrial action, which amounts to a breach of contract, the employer is not compelled to pay the employee for the period when they are not complying with the terms of the employment contract.

If the employee is part performing their duties under the contract and this has been accepted by the employer, then the employee has a right to be paid for the work done and their pay can be apportioned accordingly.

The amount deducted depends on the way in which the individual’s pay is calculated – i.e. by the hour if paid hourly, or working day if the worker receives a salary. The employee may also lose their right to the payment/receipt of company benefits for the period in question. Over the period of the strike, holiday pay will accrue, but the employer cannot deduct money from the employee’s pay for this.

Any claim for unlawful deduction of wages relating to participation in industrial action will need to be heard in a county court or the High Court.

Can we claim unfair dismissal?

To claim unfair dismissal an employee (not a worker) must have one-year’s continuous service. Protection depends on whether the industrial action is unofficial, official or protected.

Any dismissal during the ‘protected’ period will be unfair. This protection is extended to all employees, irrelevant if they are a member of a union. After this period the protection is lifted and whether any dismissal is unfair will depend on the conduct of the parties if it can be shown the employer has acted unreasonably by not trying to settle the dispute, or the individual stopped taking part in industrial action before the end of the period of protection but has been dismissed nonetheless.

If the employee wishes to cease being part of the industrial action, then they must put the employer on notice of this.

If the industrial action is unofficial then there is no protection for employees going on strike who are dismissed. The employer will need to show that the employee was taking unofficial industrial action at the time of dismissal – i.e. when the employer gave the employee notice of dismissal or when the contract was terminated or the fixed term of the contract expired without renewal.

This is unless it can be established the dismissal is automatically unfair for another reason (such as being related to pregnancy) or an individual is dismissed for taking industrial action, whereas others have not been dismissed.

Any claim for unfair dismissal should be lodged at the employment tribunal within three months of the effective date of termination. If the employee is found to have been unfairly dismissed then the employee is entitled to a basic award of compensation, which is calculated by taking the age and length of service of the individual into account.

An award may also be made to compensate the employee for their losses resulting from the unfair dismissal. The tribunal also has the power of reinstatement and reengagement of the employee.

Do the statutory dismissal and disciplinary procedures (DDP) apply?

Generally if an employer is seeking to dismiss an employee, DDP applies. If the employer fails to adhere to the DDP then the dismissal can be automatically unfair and an uplift in compensation can be awarded if unfair dismissal is shown. However, the DDP does not apply to a dismissal when:

  • It results from taking part in unofficial industrial action
  • The action is official but was not lawfully organised
  • The action is protected (any dismissal would be automatically unfair).

This is for guidance only and is not intended as legal advice on individual cases. With thanks to Russell Jones & Walker, part of Slater & Gordon Lawyers.

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