Out-Law Guide | 01 Nov 2021 | 12:39 pm | 6 min. read
In particular those employers who wish to challenge the legality of industrial action will need to be able to identify which, if any, of those legal requirements have not been complied with while those who wish to make contingency plans need to know the timescales involved.
Industrial action can take the form of either a strike or 'industrial action short of a strike' - for example, an overtime ban or work to rule.
This guide will consider what is required before industrial action can lawfully be taken in the UK and when.
For a trade union to avoid liability for inducing employees to breach their contracts of employment by taking part in any industrial action, and for employees to have some protection against dismissal, there are minimum legal requirements that need to be met. Provided these requirements are satisfied, the industrial action will be 'protected'.
Similarly it is important that employers understand when a union is supporting industrial action and the implications of it not doing so. If industrial action has been endorsed or authorised by the trade union, it will be 'official' industrial action.
Employers must be able to ascertain whether or not industrial action has been lawfully organised so that they can decide on the appropriate course of action and, in particular, if there are grounds on which they can challenge the industrial action. If industrial action has been lawfully organised – and is therefore 'protected' – employers are more limited in the preventative steps they can take. However where the industrial action is 'unofficial' – that is, not supported by the union – the risk of dismissal for employees is considerably increased.
Workers participating in industrial action are also protected from detriment, although withholding pay due to a worker's being on strike will not amount to a detriment.
If industrial action is protected the trade union will be immune from any action by the employer to sue them for inducing employees to breach their contracts of employment. If industrial action is not protected, even if it is official, an employer will be able to seek an interim injunction in the High Court to prevent the industrial action from taking place or damages from the trade union if the industrial action has already taken place.
If an employee chooses to strike, an employer can withhold part of the employee's pay. The amount of pay that can be withheld can sometimes be complicated and dependent on, for example, whether the employee is salaried, paid hourly or a piece worker. However, if an employer takes disciplinary action against the employee, it now may amount to an unlawful detriment following a 2021 case.
Although the employee may be in breach of contract in taking industrial action, and could be potentially dismissed for gross misconduct, an employer also has to be careful to ensure that it does not put itself at risk of unfair dismissal claims in dismissing an employee.
As a general rule:
Where the industrial action is protected and official an employer will be at risk of unfair dismissal claims if the principal reason for dismissal was that the employee took part in protected industrial action and if the employer dismissed the employee:
Employers should be aware of the fact that action they believe to be official could be repudiated by the union. The union could confirm that it does not authorise or endorse it, meaning it becomes unofficial action.
To be lawfully organised, and therefore protected, the industrial action must satisfy the following requirements:
If an employer believes that one or more of the above steps has not been complied with then it should keep any evidence of this non-compliance as it could be used in a potential challenge to the industrial action.
The most common mistakes trade unions make when organising industrial action are:
Employers should be aware of these issues if they wish to challenge industrial action. However, accidental and minor breaches will be disregarded.
The Trade Union Act 2016 came into effect on 1 March 2017. The main impacts were: