Is it illegal for an employer to dismiss staff for taking part in a strike?

Staff on Strike

There may be many reasons as to why staff will go on strike with the main reasons often being due to pay or down to the threat of possible redundancy. For example it is not uncommon for University lecturers in the London Universities to go on strike and some British Airways staff have recently been on strike due to the proposed cost cutting exercise by the airline in reducing the amount of cabin crew on certain flights.

The essence of a strike

The essence of a strike is that an employee is refusing to work for their employer. In effect this will constitute a repudiatory breach of their contract of employment which would usually give their employer the right to sack them without notice or pay in lieu of notice.

However, there are certain scenarios whereby an employer dismissing an employee for taking part in a strike would be considered as wrongful dismissal.

What is the rule concerning dismissing employees for taking part in a strike?

The rules concerning the ability of employers to dismiss employees for participating in a strike are complex and centre on whether the strike is protected, official or unofficial and whether the employee has been participating in the strike.

Protected Strike

When is a strike protected?

A strike will be regarded as a protected strike when it has been lawfully organised by a union.

When is a strike lawfully organised by a union?

A strike which has been lawfully organised by a union concerns a valid trade dispute and the union has complied with the statutory balloting and notification procedures.

Official Strike

When will an employee be regarded as participating in an official strike?

An employee will be regarded as participating in an official strike if one of the following conditions is met:

  • The employee is a member of a trade union and the strike is authorised or endorsed by that union

  • The employee is not a member of a trade union, but other employees taking part in the strike are members of a trade union which has authorised or endorsed the strike

  • The employee is not a member of a trade union, nor are the other employees members of a trade union, but the strike has been authorised or endorsed by that trade union

Unofficial strike

When will an employee be regarded as participating in an unofficial strike?

An employee will be regarded as taking part in an unofficial strike if none of the above conditions have been met.

Participation

What is meant by participation in relation to a strike?

It has been held that participation does not require any form of positive action.

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For more information on:

  • When is an employer able to legally dismiss employees who have taken part in a strike?
  • When will the dismissal be regarded as automatically unfair?
  • Can an employer dismiss an employee after the strike has taken place?
  • Are there any other options open to an employer to deal with staff which go on strike?