Over 6.5 million people in the UK belong to a trade union and may be considering whether to participate in ongoing industrial action over pay and working conditions.
In our article, Right to Strike in the UK, we looked at some of the employment law issues surrounding industrial action. In this feature, we answer some of the most frequently asked questions by employees who may be contemplating strike action.
Who decides on industrial action?
A trade union will call for industrial action but usually only after attempts to resolve disputes through negotiation have failed. Before any strike can take place, the union must organise a secret postal ballot to ask all affected union members whether the strike should go ahead. By law, a ballot must have a minimum 50% turnout of those eligible to vote, with a majority choosing to vote in favour of a strike.
How do I commence strike action?
Only a registered trade union can lawfully obtain consent to strike. Strikes organised by unions according to the correct procedures set out in the legislation are granted protections under UK law.
Strikes commenced by workers without union involvement are called ‘wildcat strikes.’ Any strike that takes place without authorisation from a union offers no legal protection and workers who participate in such strikes are at risk of being disciplined or even dismissed.
Do I have to strike if my union votes to go ahead with a strike?
You have the right to take part in a strike, whether you are a trade union member or not, so long as you work for the same employer. In such circumstances, you cannot be compelled to return to work while strike action is ongoing.
Equally, you have the right to not strike and you cannot be sanctioned by your union for refusing to participate. If you are excluded or expelled from your union for refusing to take part in industrial action, you can bring a complaint against them in a tribunal.
Do I have to strike if I voted yes for strike action?
Even if you voted for strike action, you are not committed to taking part on a specific strike day and can decide to go to work as usual.
Is striking a breach of my contract?
You will technically be in breach of your employment contract by going on strike as you are withholding your labour and in theory, your employer can sue you for breaking your contract, although this is extremely rare.
Do I have to let my employer know that I will be striking?
Although your employer can ask whether you intend to take part in a strike, you are not obliged to tell them before the start of any strike action.
Can I be fired for going on strike?
Where a strike has been organised by a trade union and follows the procedural requirements set out in the law, you cannot be dismissed for taking part in that strike action. Employees dismissed for taking industrial action at any time within 12 weeks after the action began can bring a claim for unfair dismissal in the tribunal.
Non-union members who go on strike are also protected from dismissal and have the same rights as union members.
Am I still protected if I am in my first 12 months of employment?
Yes. All employees are protected from dismissal provided the industrial action is lawful. It is automatically unfair to dismiss anyone taking part in lawful industrial action in the 12 weeks, irrespective of how long you have worked with your employer unless a tribunal finds that your dismissal was not related to the industrial action.
Won’t going on strike make it more likely I am chosen for redundancy?
While it is understandable that you might have some concerns, employees are protected from dismissal in the 12-week period from when the strike action started unless the industrial action is unlawful and has not fulfilled the procedural requirements under the law.
So, it will be automatically unfair to dismiss you for taking part in the strike unless a tribunal finds that your dismissal was not related to the industrial action.
Even if you are made redundant further down the line and you were chosen at least partly because you have been on an official strike, your redundancy may be unfair and could be challenged in a tribunal.
Will I still be entitled to be paid if I go on strike?
No, you are not entitled to be paid for the days that you are striking and your employer can lawfully deduct your wages for those days. However, your employer cannot deduct more than one-fifth of your weekly pay for each day of strike action.
In some circumstances, it might be possible to get strike pay from your union if you are a member.
Are my pension contributions affected if I decide to strike?
Your pension contributions may be slightly impacted as your employer does not have to pay striking workers contractual benefits such as pension contributions on strike days.
I have been told that a one-day strike would be seen as a break in service and that my continuity of service would be broken. Is this correct?
Strike action does not break your continuity of employment so long as you return to work after the strike ends.
However, it will reduce your length of service by the number of days that you were absent from work whilst on strike. This may be important when working out your pension, statutory redundancy pay or entitlement to certain benefits. For example, if you are entitled to receive extra holiday entitlement after five years of continuous service, striking for 3 days will mean that you might need to wait for five years and three days to get that benefit.
Are there special rules if I am pregnant, in my last year of service or receive state benefits?
Most unions will exempt you from taking part in strike action if you fall into one of these categories of staff, especially if there is a chance you may suffer long-term financial loss as a result of taking strike action.
What if I work part-time?
If you work part-time and take part in strike action during your usual working hours, your employer can deduct your pay on a pro-rata basis and only for your contractual hours.
If you were not supposed to be working on the day of the strike, you cannot officially strike and your employer cannot deduct your pay.
What if I am on sick leave during the strike?
If you are absent from work on the day of strike action owing to long-term sickness, the usual rules apply for statutory sick leave and pay. You should not be put under pressure from your employer to return to work from sick leave early to cover for striking colleagues.
If you report sick on the day of the strike, your employer will have the discretion to decide whether you should be regarded as being on sick leave or strike.
Can I be on annual leave on a strike day?
If you have pre-arranged your annual leave in advance and it coincidentally falls on a strike day, you won’t be considered part of the strike action and your employer should not deduct your pay.
However, you may not be able to arrange annual leave to avoid losing a day’s wages once it is already known that industrial action is taking place that day. This is because workers no longer have the right to claim their work-related benefits during strike action.
What if I have work commitments away from my usual workplace on the day of the strike?
Where the external work commitments are part of your normal work for your employer, you can choose not to attend them if you would like to participate in industrial action.
If I strike, can my employer use agency staff to cover me?
Yes, that is possible. The law has recently changed to allow employers impacted by strike action to fill staffing gaps with temporary agency staff.
However, the High Court has given Unison, the UK’s largest union, permission to challenge this change in the law in the courts on the basis that it violates fundamental trade union rights so this may change again in the future.
Are there rules on picketing?
Picketing is where employees and union representatives (‘pickets’) stand outside a workplace on the day of industrial action to gain support for their cause. They may encourage or ask people to refrain from going to work.
There are rules set out in a Code of Practice on Picketing that set out exactly what is required and what is not permitted during picketing. For example, a picket should usually be made up of no more than six people outside a workplace. In addition, pickets are not allowed to use threatening or abusive behaviour towards people crossing the picket line or block people trying to get into the workplace.
For more information or advice on matters relating to industrial action, please contact our experienced employment solicitors or email us at info@witansolicitors.co.uk.
