Economically difficult times have led to a sharp increase in strike action, which has threatened to bring the country to a standstill as workers in key public sectors such as nursing, teaching and transport take industrial action over pay and conditions.
To counter the crippling effect of strike action, the government introduced the Strikes (Minimum Service Levels) Bill in January 2023 and faced a furious backlash from unions who argue that the Bill is contrary to the UK's human rights obligations.
In this article, we look at some of the fundamental employment law issues surrounding industrial action and explore the practical and legal risks of strike action.
What is Industrial Action?
Industrial action is where workers take concerted action to put pressure on an employer in an attempt to achieve some objective. This could include strikes or action short of strike action such as overtime bans, work-to-rule – which involves refusing to take on any additional duties beyond their contract of employment – and go-slow, where employees perform their duties but seek to reduce the productivity or efficiency in their performance of those duties.
Industrial action occurs when trade union members are in a dispute with their employers that cannot be solved through negotiations.
Do we have a Right to Strike in the UK?
There is no actual statutory right to strike under UK law. However, there is the right to be a member of a trade union, which can legally call for its members to strike under certain conditions. Article 11 of the European Convention on Human Rights protects “the right to freedom of peaceful assembly and association with others, including the right to form and join trade unions.”
Industrial action, including strike action, is legal and protected if it follows the rules laid down in the Trade Union and Labour Relations Act 1992 (TULRCA) Trade Union and Labour Relations (Consolidation) Act 1992, which should be interpreted in line with Article 11 ECHR. To count as a ‘protected industrial action’, a strike must be organised by a trade union and;
- relate to a work dispute with the striking employees’ own employer
- be supported by a valid secret postal ballot that has been independently scrutinised, in which at least half of the balloted workers have voted. For this purpose, not voting counts as a vote against the strike.
- be carried out with at least 14 days’ notice to the employer.
Industrial action can be challenged by the employer if it does not meet the above conditions.
The law only protects workers who peacefully protest, communicate or persuade people to abstain from working at or near their own workplace, subject to certain limits. It does not protect sympathy strikes where a group strikes against employer A in sympathy with a group working for employer B. Any violence, intimidation or harm to persons or property is also not protected.
A Dismissal of Industrial Action
A strike, or other forms of industrial action, is a breach of the contract of employment, which would usually allow the employer to dismiss. However, TULRCA 1992 provides some protection for employees against dismissal for strike action so long as the strike is a form of protected industrial action (see above) that follows the rules set out in the Act.
When is Dismissal Permitted?
After 12 weeks, if the industrial action is still ongoing, an employer may be able to dismiss employees where it has taken reasonable steps to settle the dispute and it has acted reasonably and consistently, treating all employees alike.
There is no protection against dismissal for employees for taking part in unofficial industrial action, for example, where the strike has not been authorised by their trade union. The only exception is where the employees can show that the reason for dismissal falls within one of the automatically unfair reasons such as maternity, health and safety or whistleblowing.
Automatic Unfair Dismissal
Under S.238A of TULRCA 1992, it is automatically unfair to dismiss someone who has taken part in any lawful industrial action during a period of 12 weeks from the date the employee started to participate in the industrial action.
An automatically unfair dismissal is a dismissal that is so unfair that an employee is not required to show two years’ continuous service in order to bring a claim to the tribunal for unfair dismissal.
An employee can also claim that they have been unfairly dismissed if they were dismissed after the 12 weeks but had stopped taking industrial action before the end of that period.
Action Short of Dismissal
It was recently confirmed by the Court of Appeal in Mercer v Alternative Future Group Ltd that TULRCA does not protect employees from action short of dismissal if they participate in strike action. In light of this case, an employer could, in theory, take steps to encourage employees to attend work during a strike, for example, by potentially removing discretionary benefits or reducing overtime for those who participate.
However, since this could amount to a breach of contract that would entitle the employee to resign and claim unfair dismissal, caution should be exercised by employers contemplating such actions. Furthermore, this may not be the last word on the debate as the Supreme Court has granted permission to Unison UNISON - the public service union to challenge this decision.
Payment
Participating in most forms of industrial action is a breach of an employee’s employment contract. As a result, an employer is entitled to deduct pay for the period an employee takes part in a strike. The calculation of the withheld sum will be dependent on a few factors, such as how they are usually paid.
Picketing
Picketing is where employees and union representatives (‘pickets’) stand outside a workplace to gain support for their cause and tell other people why they are striking. It is often done to attract media attention and increase the reputational damage to the employer.
A peaceful picket line is lawful under S.220 of TULRCA. However, while pickets are permitted to encourage people not to do some of their usual work or go to work, they cannot compel them or put pressure on them not to do so. In the past, picketing has led to criminal behaviour, such as trespass, harassment or even assault. As a result, the Code of Practice on Picketing makes a number of recommendations to ensure peaceful picketing, such as suggesting a maximum of six people per picket line and having an easily identifiable picket supervisor, wearing an armband or tabard, who carries a letter confirming that the picketing is sanctioned by the union.
New Legislation Forthcoming
If enacted, the Strikes (Minimum Service Levels) Bill, introduced by the government in January 2023, would represent a fundamental change to UK trade union law. The Bill would enforce ‘minimum service levels’ in key public sectors, including the NHS and schools, by allowing employers in those sectors the power to serve a ‘work notice’ on trade unions where members ballot for strike action. In the work notice, the employer would identify the individuals required to work to maintain minimum service levels and specify the work to be done by them.
Where minimum standards are not met, the Bill will allow bosses in health, education, fire, ambulance, rail and nuclear commissioning to bring legal action against the relevant unions. Moreover, it is also proposed that employees who are identified in a work notice may lose their right to protection from unfair dismissal if they subsequently took part in strike action and refused to work.
Unions have reacted angrily to this controversial Bill and have argued that it is contrary to the right to strike, which is enshrined in the European Conventions on Human Rights.
For more specific questions relating to strike action, see our article ‘FAQs on taking strike action’ here.
If you need any further help or advice on issues relating to industrial action, please contact our experienced employment law team or email us at info@witansolicitors.co.uk.
