Where an employee goes on strike and refuses to work for their employer, this would ostensibly constitute a repudiatory breach of their employment contract and thus give the employer the right to sack them without notice or pay in lieu of notice.
There are certain scenarios, however, where an employer dismissing an employee for taking part in a strike would be considered unfair dismissal.
When can a strike be called?
A trade union can only call for a strike if all affected trade member unions have been properly balloted and a majority vote for strike action.
To be valid, a ballot for industrial action must:
- be supervised by a qualified independent person appointed by the union if more than 50 members are being balloted. The Trade Union Ballots and Elections (Independent Scrutineer Qualifications) Order 1993 specifies conditions which must be satisfied for an individual or partnership to qualify for appointment as a ‘scrutineer’. It also specifies certain bodies by name as being qualified;
- take place before the union asks members to take or continue taking action;
- be open to all members the union wants to take action;
- be a postal ballot where members vote by marking a box on a voting paper and return it in a prepaid envelope;
- include information on what the ballot is about and where to post the vote.
The union must inform everyone entitled to vote how many people voted, the number of yes votes, no votes or spoiled papers as soon as possible after the ballot.
The employer must be given one week’s notice of the start of the ballot and tell them the result as soon as feasible.
An employee doesn’t have to take part in strike action and their union isn’t allowed to discipline them if they refuse.
Employment rights during a strike
As long as the ballot was organised according to the rules, an employee has the right to take strike action and they can’t be legally forced to stay at, or go back to, work.
Striking employees are technically in breach of their employment contracts and the employer does have a right to sue them for this breach (although this is very rare).
It is unlikely an employee will be paid for the time they are off work during the strike and the employer is allowed to reduce an employee’s length of service with them by the number of days they were on strike. This may affect the employee’s pension entitlement and statutory redundancy pay.
The employer is not, however, allowed to say that an employee’s strike action interrupted their period of continuous employment with them. This starts when an employee begins working for their employer and ends on the day the employer uses to calculate their length of service.
Dismissal for industrial action
An employee cannot be dismissed for strike action if:
- it’s called as a result of a properly organised ballot;
- it’s about a trade dispute between workers and their employer (eg, about your terms and conditions);
- a detailed notice about the industrial action has been given to the employer at least seven days before it starts;
Employees dismissed for taking industrial action at any time within the 12 weeks after the action began can claim unfair dismissal at an employment tribunal.
Under the Employment Relations Act 2004, after 12 weeks (the ‘protected’ period for industrial action), the employee can be dismissed if they take industrial action and their employer has tried to settle the dispute (eg, if the employer has brought in Acas to help find a solution).
An employee can be dismissed for taking part in strike action if:
- a properly organised ballot hasn’t been held by the union;
- the employer isn’t given the right notice for balloting members or taking action by the union;
- the action is called by someone who doesn’t have the authority to do so or the union hasn’t called its members to take action because they think the dispute is settled;
- it’s in support of workers taking action against another employer (ie, ‘secondary’ action);
- it’s in support of only employing union members (a ‘closed shop’);
- it breaks any other parts of industrial action law.
If employees take part in strike action that breaches the rules and they’re dismissed, they can’t usually claim unfair dismissal if all employees taking part are dismissed as well.
Remedies for dismissed striking employees
If the tribunal finds an employee has been unfairly dismissed, it can make an award of compensation comprising a basic award, based on the employee’s age, length of service and weekly pay and a compensatory award (an amount the tribunal considers fair taking into account the loss the employee has suffered as a result of the dismissal, subject to a limit of £50,000).
If no employees are still taking protected industrial action over the dispute and if the employee requests it, the tribunal may order that the employee be re-instated. If the employer refuses to comply with this order, the tribunal can make an award of compensation consisting of the basic and compensatory awards mentioned above and an additional award of between 26 and 52 weeks’ pay (subject to a maximum of £25,428).
Industrial action by non-union members
Non-union members who take part in legal, official industrial action have the same rights as union members not to be dismissed as a result of taking action.