Road Legal

Industrial action is any concerted action which is taken by or on behalf of employees in order to put pressure on an employer. The law makes no distinction between union members and non-union members in terms of the protection it gives to employees participating in a strike or other industrial action. Therefore, where a union has called a strike following a successful ballot of its members, unfair dismissal protection extends not only to members of the  union, but to all employees who participate.

However, non-union members are not entitled to a vote in the strike ballot and only members of the union calling for strike action can vote.

An employer needs to consider its legal position in respect of both the trade union and the employees. The rules for each are, in the main, distinct: the fact that a union is protected from legal action for organising a strike does not necessarily mean that participants in that strike cannot be dismissed or have their pay stopped.

Official or unofficial?

Industrial action needs to be endorsed or authorised by a union to be “official”. Industrial action is official and protected if it has been lawfully organised by the unions (see below) so as to give the union immunity from tort liability.  If a union has not complied with the legal obligations on it then an employer may be able to obtain an injunction to prevent the industrial action going ahead and to also claim damages for lost business during the strike. As a result, trade unions are generally very careful to ensure they follow the legal requirements before a strike is called.

Employees taking part in official industrial action cannot normally claim unfair dismissal if the employer dismisses all of them. But they can claim unfair dismissal if the employer selectively dismisses some of the employees or dismisses all of the employees and selectively offers re-engagement.

Employees have greater protection from unfair dismissal during official industrial action. In contrast, employees dismissed while participating in unofficial industrial action cannot normally claim unfair dismissal.

Is it a breach of contract?

As going on strike involves the withdrawal of the employees' labour it amounts to a breach of contract. Other industrial action (short of stopping work) may constitute a breach depending on what the employees' contracts states.

If there is a breach of contract an employer may be able to:

• Take legal action against a trade union to stop it orchestrating or continuing to support industrial action if the union has not lawfully organised the industrial action. In these circumstances it may be liable in tort for interfering or inducing employees to break their employment contracts.
• Lock the employees out during the dispute or withhold their pay.
• Dismiss without notice (provided all employees engaged in the industrial action are dismissed). There are specific rules on unfair dismissal and specific advice should be taken before dismissing.

Organising industrial action

A union will be liable for industrial torts unless the following steps are taken:

• The union organises a ballot and sends a ballot notice (no more than seven days before the ballot) and a copy of the voting papers (no more than three days before the ballot) to the employer of any employees who are entitled to vote.
• The ballot is held.
• The result of the ballot is announced to union members who were entitled to vote in the ballot; this should include any spoiled voting papers.
• An independent scrutiniser must issue his report on conduct of the ballot within four days of the ballot taking place.
• Notice of industrial action must be served on the relevant employers at least seven days before the start of the industrial action. If industrial action is discontinuous, the union must give at least seven days’ notice of each day when the industrial action will take place.
• The industrial action must be started within four weeks of the date of the ballot, otherwise the ballot result will be treated as “stale”.

For guidance, see sections 226 to 234A of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA).

Statutory recognition

Part I of Schedule A1 of the TULRCA provides that in certain circumstances a trade union may make an application to the employer, and then to the Central Arbitration Committee (CAC), for a declaration that it should be recognised to conduct collective bargaining regarding pay, hours and holidays on behalf of workers.

If a union is recognised, the employer must inform and consult the union on matters such as redundancy, health and safety and the transfer of any undertakings, and provide any information necessary for collective bargaining.

If the union’s request is valid, the employer and the trade union must agree on which workers will be subject to collective bargaining and the method of collective bargaining. Either party has the right to apply to the CAC for assistance if no agreement has been reached within 30 working days. The CAC has 20 working days from the application date to help achieve an agreement. If no agreement is reached, the CAC will lay down legally binding terms. However, the imposed method of collective bargaining can be modified by the union and the employer, providing both agree.

The time limits and procedures to be followed at each stage are complex and guidance can be found in this document from the Central Arbitration Committee (CAC).       

Gareth Edwards is a solicitor in the Employment Department of Reynolds Porter Chamberlain LLP.