A strike is a stoppage of work by employees acting in concert. Industrial actions do not need to be called by a trade union, and those participating do not have to be union members.
An official industrial action is when the employees are members of a trade union and the action is authorised by the union. An employee who is not a trade union member is able to take part in an official industrial action that has been authorised. An unofficial industrial action is when the action has not been authorised by the union.
Employee rights
If an employee is a trade union member, they have the right to vote before their union if they ask the employee to take industrial action. The employee does not have to take part in industrial action and they cannot be disciplined if they do take part.
Striking can be a breach of contract by the employee and affect their employment rights such as the right to redundancy pay or entitlement to notice if they are dismissed for striking. Employees cannot bring claims for unlawful deduction from wages if they take part in industrial action and the reason for the deduction is the action.
Employees are protected under section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992, which states that a dismissal will be automatically unfair if the reason for the dismissal is that the employee took part in official industrial action during the protected period (the first 21 weeks, beginning with the day the employee started participating in the industrial action) or in some circumstances after the protected period. Further, an employee can claim for unfair dismissal against their employer in this situation. This does not apply if the employee was participating in an unofficial industrial action.
What employers can do
The following outlines what businesses can and can’t do to protect their position when a strike situation arises:
Withholding pay
A strike action will usually be a breach of the employee’s employment contract so the employer can withhold pay wholly or in part. Consideration will need to be taken for those who are absent because of annual leave or sick leave. It is not unheard of for striking employees to be encouraged to obtain sick notes, but it is for the employer to clarify that any sickness absence is genuine.
Agency staff
Employers are prevented from using agency staff to perform the duties of those employees on strike, or to cover the duties of any other worker. However, they can use their internal bank of staff who are not striking to cover for the workers on strike.
Risk planning
Businesses should undertake this as soon as the organisation is aware of the potential action. If an employee breaks a contract of service knowingly or having reasonable cause to believe it will endanger human life or cause serious injury or the destruction of property, they will be committing a criminal offence. The employer needs to prepare for the possibility that the employee may be unable to prevent a strike.
Dismissal
Any dismissal of an employee for taking part in or having taken part in an official industrial action will be automatically unfair. Employees who are not members of any union but who take part in official strike action will also have protection from unfair dismissal. Employers have a greater chance of successfully defending an unfair dismissal claim where the employee has been dismissed for taking part in an unofficial strike action or where a fair process has been followed.
Partial performance
Where an employee takes action that is short of a strike situation – such as performance of some of their duties but not all of them – the company may demand that the employee comply with their contract or stay at home and not be paid. However, the company could decide to accept partial performance and pay the employee only for the work they perform. This could be an effective solution to cover gaps in service provision.
Injunction
The main remedy for businesses threatened with an unlawful industrial action is to apply to the High Court for an interim injunction against the trade union. The court cannot compel the employees to perform their employment contracts or attend work, but certain remedies are available against employees who participate in industrial action, depending on whether they are official or unofficial actions.
Tips for businesses
Employers should consider:
- whether the notice of ballot complies with the legal requirements (purpose, timing or numbers and categories);
- what information the union is likely to have and what evidence you have about the information that you would expect the union to have;
- whether the organisation will accept partial performance;
- what communications may be helpful to send to employees encouraging them to oppose the strike;
- separating employees who are taking part in the strike from those are absent for other legitimate reasons (for example, holiday or sick leave);
- using existing employees from other parts of the business or existing casual workers to keep the business operational during a strike;
- establishing dispute resolution procedures and the use of conciliation and mediation services; and
- applying for an injunction, including a letter before action, application and supporting evidence.
Shah Qureshi is a partner and head of the employment and professional discipline department at Bindmans
