Out-Law / Your Daily Need-To-Know

UK employers faced with industrial action need to understand the steps that a trade union must take before they can lawfully make a call for industrial action and the timing of those steps.

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.

When will industrial action be 'protected' and 'official'?

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.

What can employers do when faced with 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. If an employer takes disciplinary action against the employee, it now may amount to an unlawful detriment following the 2021 Mercer case - although we await the decision of an appeal to the Supreme Court that should be known in 2024.

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 industrial action is not protected but is official - that is, supported by the trade union - an employee participating in the action will have no right to claim unfair dismissal provided the employer dismisses all of the employees participating in the industrial action;
  • where the industrial action is unofficial, an employer can choose which of the employees participating in the industrial action to dismiss and can still be immune from unfair dismissal claims.

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:

  • at any point within the 12 week period after the employee began industrial action;
  • after this 12 week period if the employee ceased industrial action on or before the end of the 12 week period; or
  • after this 12 week period if the employee continued to participate in the industrial action where the employer had not taken reasonable steps to resolve the industrial dispute.

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.

When will industrial action be lawfully organised?

To be lawfully organised, and therefore protected, the industrial action must satisfy the following requirements:

  • it must be in 'contemplation or furtherance of a trade dispute', which includes disputes in relation to terms and conditions of employment;
  • the union must conduct a valid secret postal ballot;
  • the union must give all those entitled to vote in the ballot, and no others, the opportunity to do so. Although only trade union members who will be induced to take industrial action can vote, non trade union members can take part in the industrial action;
  • it must have the support of the ballot – that is, the majority voting in the ballot must vote in favour of the industrial action;
  • the union must send a valid ballot notice to the employer at least seven days before the start of the ballot;
  • the union must send a sample of the voting paper to the employer no later than three days before the start of the ballot;
  • the result of the ballot must be announced as soon as is reasonably practicable;
  • where an independent scrutineer is involved (where more than 50 members are entitled to vote) they have four weeks from the ballot to issue their report on the ballot. Special rules apply if the scrutineer does not believe the industrial action is valid;
  • the union must serve a valid notice of industrial action on the employer at least 14 days before the start of the action unless the employer agrees to a shorter period of seven days, only inducing those members who were given the right to vote in the ballot to participate;
  • the industrial action must start within four weeks of the closing date of the ballot.

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.

Challenging industrial action

The most common mistakes trade unions make when organising industrial action are:

  • not serving the notice of ballot, ballot paper and notice of industrial action within the requisite timescales;
  • not limiting their ballot to those of their members who are entitled to vote;
  • inducing members to take part in the industrial action who were not given the opportunity to vote.

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

The Trade Union Act 2016 came into effect on 1 March 2017. The main impacts were:

  • it is more difficult for workers to go on strike. Unions need to gain a 50% turnout figure in any secret ballot before their members can take lawful strike action;
  • a requirement that 40% of all those entitled to vote in the ballot must vote in favour of industrial action within certain public services (fire, health, transport, education, border security), while meeting the 50% turnout threshold;
  • a description of the trade dispute on the ballot paper is required;
  • measures to restrict picketing;
  • new members must opt into the political fund element of subscriptions;
  • changes to the role of the certification officer;
  • restricting the mandate for industrial action post ballot by introducing time limits on the mandate. Industrial action ballots expire after six months, so in long-running disputes unions either have to re-ballot or abandon their action;
  • in a concession to the unions, a review was held of the possible use of 'e-voting’ in strike ballots, via online and mobile phones, which may include pilot schemes. The review recommended a test of e-balloting in non-statutory contexts, but a government response is still awaited.
  • employers get more time to prepare for strikes - two weeks’ notice instead of the previous seven days. This aids contingency planning.

Minimum service levels

The Strikes (Minimum Service Levels) Act 2023 gives the government broad powers to impose minimum service levels on employers in six service sectors to restrict employees’ ability to strike. The affected sectors are:

  • health services;
  • fire and rescue services;
  • education services;
  • transport services;
  • decommissioning of nuclear installations and management of radioactive waste and spent fuel; and
  • border security.

The legislation is supported by a statutory code of practice that sets out the reasonable steps a union can take to ensure that all members of that union who are identified within an employer work notice comply with minimum levels of service specified in the notice during strike action. Additional government guidance on the legislation has also been published alongside specific guidance on passenger railway minimum service levels (29-page / 266KB PDF).

Minimum service levels for passenger rail, border security and ambulance services are now in force. Minimum service levels for fire and rescue services, hospital services and education are likely to follow in 2024.

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