What is Industrial Action?
A strike, go-slow, working to rule or walk-out are all forms of industrial action. S237 Trade Union and Labour Relations(Consolidation) Act 1992 says that an employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action. Effectively, if you take part in unauthorised industrial action, the Employment Tribunal will not hear your case.
In the case of Sehmi v Gate Gourmet London Ltd ; Sandhu and others v Gate Gourmet London Ltd , the Employment Appeal Tribunal (EAT) considered when it would be fair to dismiss an employee who has taken unauthorised absence to take part in industrial action.
Six employees were among hundreds sacked by Gate Gourmet, which prepares airline food. The Employment Tribunal said that either they were dismissed while taking part in unofficial industrial action, so that it had no jurisdiction to hear the case under S237 (1) of the Trade Union and Labour Relations (Consolidation) Act 1992, or that the dismissals were fair. They appealed to the Employment Appeals Tribunal which agreed with the original Employment Tribunal.
An employer is entitled to summarily dismiss an employee who refuses to work, because the refusal is a fundamental breach of contract and a gross misconduct. In Simmons v Hoover , Mr Simmons was absent because he was sick. When he recovered and went back to work, his colleagues were on strike so he joined them. All the strikers were dismissed. The court said that at common law, by going on strike, employees commit repudiatory breaches of their contracts of employment. It is up to the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach.
Can You Claim Unfair Dismissal?
You are protected from being sacked during the first 12 weeks of official industrial action. Non-union members who take part in legal, official industrial action have the same rights as union members not to be dismissed as a result of taking action.
If you are sacked during this period, you can claim unfair dismissal. However, you can be dismissed after 12 weeks if your employer has tried to settle the dispute. For example, if an employment adviser like Acas has been brought in to help find a solution.
The government has introduced a new law allowing businesses to use agency workers to fill in for striking workers. The trade unions have mounted a legal challenge.
In unfair dismissal , the issue is not one of contract but one of statute. The question is whether the employer acted reasonably and used a fair procedure under s98 Employment Rights Act 1996, and whether it was protected industrial action under s238A Trade Union and Labour Relations (Consolidation) Act 1992.
The effect of S238A is that if you are dismissed for taking part in an official strike, you will be able to claim automatically unfair dismissal. The protection normally continues for the first 12 weeks of the strike, known as “the protected period”.
Protected Industrial Action – S238A TULRCA 1992
Industrial action is protected for 12 weeks if your union has complied with the requirements under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). The industrial action must be because of a trade dispute and satisfy the statutory requirements for balloting and notifying the employer, certain forms of industrial action are not allowed. Where the reason or principal reason for dismissal is that you took protected industrial action, then it will be automatically unfair dismissal if;
- The industrial action is ‘protected industrial action’ under TULR(C)A 1992, S238(2B) & S238A(2)
- You were dismissed whilst still taking part in the industrial action.
- You were dismissed at some stage after you had stopped taking industrial action.
In Davis v Friction Dynamics  factory employees clashed with their employer when management removed the employees’ contractual rights to have their terms and conditions determined by a collective agreement. The employer also took steps to remove union involvement at the workplace. The employees’ balloted for industrial action and a strike was called. On the first day of the strike the employer wrote a letter to each of the strikers, saying, “You have taken industrial action and by doing so have repudiated your contract of employment”. The Manager consulted a text book before writing this letter, and added the word ‘bingo’ against a passage indicating that the whole of a striking workforce could be sacked without anyone being able to claim for unfair dismissal. The tribunal found out because although this same Manager had deleted the word on the document which went to the tribunal, the employee’s had already copied it.
After this the employer imposed holidays and refused to allow the employees to return to work Known as a lock out). Some meetings took place, in which ACAS was involved. It was confirmed by various witnesses, including an MP, that the American managing director, Craig Smith, viewed the strikers as ‘history’. Eight weeks after the strike began, the employer sent further notices to the strikers sacking them all.
The employees won in the tribunal on two grounds;
Firstly, the letter written to the employees on the first day of the strike was an unambiguous letter of dismissal, so that the workforce was dismissed during the protected period and the dismissal was unfair. Secondly, the employer failed to attend meetings and deliberately sought to obstruct settlement talks, so that it had not taken reasonable procedural steps. The significance of this failure was that it extended the period of protection from dismissal for the striking workforce beyond the protected period.
Dismissal After the Protected Period – TULR(C) A 1992, S238A (5) (6) & (7)
You can claim unfair dismissal if you were dismissed after the end of the protected period, and you had stopped taking industrial action before the end of the protected period.
You can also claim unfair dismissal if you were dismissed after the end of the protected period and your employer did not take reasonable steps to resolve the dispute. Reasonable steps include following processes in the collective agreement, negotiation, conciliation, or mediation.
Unprotected Industrial Action – TULR(C) A 1992, S237 (2)
Any industrial action that is in breach of TULRCA 1992 will not be protected, and will be unlawful. Unprotected industrial action can be action endorsed by a trade union, in which some members of that union are taking part, or unofficial industrial action.
Action endorsed by a trade union
If you take part in unprotected action endorsed by a trade union, and you are dismissed whilst taking part in it, you will have no right to complain of unfair dismissal, with the following exceptions:
If you can show that;
- one or more of your colleagues who took part in the industrial action has not been dismissed; or
- one or more of your colleagues who took part in the industrial action has been offered re-engagement (during the three months beginning with the date you were dismissed), and you have not been offered re-engagement.
It means that employers can legally dismiss you for taking industrial action, and you will not be able to claim unfair dismissal. All the employer has to do is to delay dismissals and go through the motions of trying to resolve the issue during the 12 week period.
After that, so long as the employer has taken the correct procedural steps any striking employee can sacked, without the hope of claiming unfair dismissal. Even if employees comply with all the duties of taking strike action.
Last Updated: [13/02/2023]