Recent industrial action and the associated disruption has dominated news headlines and demonstrates many conflicting views are still held surrounding such action. But what is the legal position?
Interestingly, at an individual level UK law does not expressly provide the specific right for an individual to strike. To be entitled to pay, work is required which means by going on strike and consequently withdrawing from the obligations under the contract of employment, an employee will technically be in breach of their contract.
The law does, however, provide protection from dismissal where it is a direct result of official industrial action under the Trade Union and Labour Relations (Consolidation) Act 1992 (or “TULRCA”). The protection may be available for employees dismissed within 12 weeks of the industrial action and:
- are trade union members and the action is formally organised or supported by that union; or
- are not members of a trade union but are taking part in industrial action which includes trade union members involved in authorised action; or
- involved in industrial action undertaken by employees, all of whom are not members of a trade union.
Employees also have protection if they are refused employment as a result of their membership (or non-membership) of a trade union.
Picketing can also be lawful provided the action is to further a trade dispute and the conditions of s.220 TULRCA are met. These include being at or near the place of work, peacefully obtaining information, communicating information, or (also peacefully) persuading any person to either work or abstain from work.
Typically, genuine effort to resolve the dispute and find an acceptable compromise is the most effective way to manage and seek to limit the impact of collective action. This is not only to assist with the working relationship overall, but also because the legal remedies for employers are limited. While technically it may be possible to explore seeking an injunction to prevent the breaches of contract or claim for damages as a result of the industrial action, such action is difficult for a number of reasons and consequently it is very rare for such steps to be taken.
However, the employer is able to legitimately withhold pay for the actual time spent on strike, which can be done on a daily basis.
Dismissal of relevant employees in certain circumstances may also be an option in cases where the industrial action does not meet the requirements to be official and therefore protected action. However, care should be taken to assess this option and it should be seen as a last resort. Dismissals in these circumstances still need to consider the ACAS code and the risk of unfair dismissal claims will remain.
As an employer, the primary concern during the period of strikes will likely be continuity of service provision. Lower staff levels will inevitably lead to a reduction in capacity. The recently introduced Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations allow employers to use agency workers as cover for striking workers. This is subject to judicial review in March 2023 by a collection of unions. [Unions launch legal challenge against government’s “strike-breaking” agency worker regulations | TUC]
Ultimately, any business facing a potential strike or significant unrest amongst its employees will need to look carefully at their workforce and the options available. Organisation is essential and understanding how to cover the work through the use of temporary workers and temporary re-structuring of teams, is crucial to try and mitigate the effects along with ideally seeking resolution before disputes escalate.
Strikes (Minimum Service Levels) Bill
The future of industrial action may be subject to additional changes if new proposed legislation is introduced. The Strikes (Minimum Service Levels) Bill is currently making its way through parliament and is at the committee stage. This legislation seeks to provide for minimum levels of service to be maintained where employees are participating in strikes in certain industries. They would apply to:
- health services;
- fire and rescue services;
- education services;
- transport services;
- decommissioning of nuclear installations and management of radioactive waste and spent fuel;
- border security
Further information can be found here.