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. From the relevant case law it has been held that passive observance or unauthorised absence is enough to amount to participation in a strike on the part of a specific employee.

When is an employer able to legally dismiss employees who have taken part in a strike?

An employer will be legally able to dismiss employees who have taken part in a strike and will therefore be immune from an unfair dismissal claim provided that the dismissal is not automatically unfair and one of the following conditions is met:

  • The employee is participating in an unofficial strike

  • The employer has dismissed all employees who have participated in an official strike at the same establishment and has not offered to re-engage any of those employers on selective grounds within three months of the dismissal

When will the dismissal be regarded as automatically unfair?

a dismissal of which the principal reason was that an employee participated in a protected official strike will be regarded as automatically unfair if the date of the dismissal falls on one of the following:

  • During the protected period – the protected period begins with the day the employees commenced participating in the strike and will last for 12 days

  • After the protected period where there has been no participation in the strike by the employee after the protected period

  • Where the employee continues to participate after the protected period – anytime before the employer has taken such procedural steps as would have been reasonable to resolve the industrial dispute

Can an employer dismiss an employee after the strike has taken place?

If an employee has been dismissed following participation in a strike they will be able to bring a claim for unfair dismissal. There are circumstances whereby the dismissal could be fair as it may be due to another reason that the participation in industrial action. This would depend upon the merits of each individual case.

Are there any other options open to an employer to deal with staff which go on strike?

Following the recent strikes involving aviation staff the employer had initially decided to remove the various travel perks available to those members of staff following the strikes. However, there is the opinion that if this were to happen the employer would be open to legal challenge as this may be seen as a breach of duty of trust and confidence owed by employers to employees. If benefits are taken away from employees simply for disagreeing with their employer this could be seen as a clear breach of that duty.