A strike is a stoppage of work by employees acting in concert. It is also known as ‘‘industrial action’. Other industrial action short of a strike which you may wish to consider could be an overtime ban, call-out ban, work to rule, go slow, work-in, and sit-in.
If you are a member of a Trade Union, you will have protection against being dismissed for taking industrial action provided your union follows the right procedure when organising it.
Holding a ballot
Your union must have a vote (a ‘ballot’) that’s properly organised according to legal rules.
Properly organised ballots
A ballot by your union for industrial action must:
be supervised by a qualified independent person (a ‘scrutineer’ – often someone from an organisation like the Electoral Reform Society) appointed by the union if over 50 members are being balloted
be held before the union asks members to take or continue taking action
be open to all members the union wants to take action
be a postal ballot where members vote by marking a box on a voting paper and return it in a prepaid envelope
include information on what the ballot is about and where to post your vote
The union must tell everyone entitled to vote how many people voted, the number of yes votes, no votes or spoiled papers as soon as it can after the ballot.
It must also give the employer one week’s notice of the start of the ballot and tell them the result as soon as possible once it’s available.
Questions on the voting paper
When you’re balloted, your voting paper must ask whether you want to take part in either (or both):
action short of a strike
The union can only call on members to take action if a majority of members who voted were in favour of that particular action. If both questions are asked on the ballot paper and members vote yes to both, the union can decide what industrial action to take.
Your employment rights during industrial action
If you take industrial action your employer:
is unlikely to pay you for the work you didn’t do when you took industrial action; and/or
can sue you for breaking your contract (this doesn’t happen often in practice)
Can I be dismissed for industrial action?
Going on strike, since it involves the unilateral withdrawal of the employees’ labour, will amount to a breach of contract by you and the other employees. However, your employer when considering whether to dismiss you/employees for breach of contract will also have to consider whether such a dismissal will be unfair.
An employer’s potential liability for unfair dismissal, where the employee has taken industrial action, is governed by statutory provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
TULRCA provides that, subject to certain exceptions, the dismissal of an employee will be automatically unfair if the reason for the dismissal is that the employee took part in official industrial action which is also protected (section 238A). Essentially this means that the action has been called by a trade union, and the union has complied with all the balloting and notification rules.
Your dismissal would be unlawful if was for industrial action and if:
the strike or other industrial action was called as a result of a properly organised ballot
the industrial action relates to a trade dispute between workers and their employer (eg your terms and conditions/ changes in your contract)
a detailed notice about the industrial action (which is legally required) was given to your employer at least 7 days before it begins.
You can claim unfair dismissal at an Employment Tribunal if you’re dismissed for taking industrial action at any time within the 12 weeks after the action begins.
After 12 weeks, you can be dismissed if you take industrial action and your employer has tried to settle the dispute.
When you may be dismissed
You could be dismissed for taking part in industrial action if:
the union hasn’t held a properly organised ballot
the union hasn’t given the employer the correct notice for balloting members or taking action
the union hasn’t called its members to take action because they think the dispute is settled or action is called by someone who doesn’t have the authority to do so
it’s in support of workers taking action against another employer
it’s in support of only employing union members
it breaks any other parts of industrial action law
If you take part in industrial action that breaks the regulations and you’re dismissed, you can’t usually claim unfair dismissal if all employees taking part are dismissed as well.
Selective dismissal or re-engagement during industrial action
A tribunal may entertain claims of unfair dismissal on their merits if the employer discriminates between those taking part in industrial action by:
dismissing some of those taking part in the action, but not others, or
offering re-engagement to any employee dismissed while taking part in industrial action within three months of his dismissal, but not to all those dismissed
An employee dismissed while taking “unofficial” industrial action will not generally be able to claim unfair dismissal, regardless of whether the employer had discriminated between those taking such action by dismissing, or re-engaging, only some of them.
Dismissal and unofficial industrial action
Unofficial industrial action is industrial action that is not organised by your trade union. You normally have no right to claim unfair dismissal if you are dismissed while taking part in this kind of action.
Farleys Solicitors specialise in employment law for employees. Advice and support includes employee disputes, employee striking, redundancies, disciplinaries, grievances, settlement agreements; and Employment Tribunal claim representation.
If you require any assistance with any of the above please contact Farleys Employment Law & HR team on 0845 287 0939 or submit your enquiry online.