Pump Court Chambers

Striking a Balance? Industrial Action & Employment Law Update

News, Blog 16th May 2023

In today’s climate it is unsurprising the UK is facing the highest rates of industrial action in many decades, across many sectors and professions. Strike is the word on everyone’s lips. As an employee you will want to know what protection you have, and as an employer what action you can and should be taking, or avoiding.

Whilst there is no technical “right to strike”, striking employees have statutory immunity from dismissal (under the Trade Union and Labour Relations (Consolidation) Act 1992) where they take part in lawful industrial action. Whilst the withholding of services will be regarded as a breach of the employment contract, the employee will be protected from dismissal because of lawful industrial action.

In order to be classed as lawful there are certain strict conditions which must be met. The industrial action must be:

  • organised by a trade union;
  • in furtherance of a trade dispute which exists between the workers and their employers;
  • supported by an appropriate mandate, whereby trade union members vote in favour of the strike in a procedurally correct ballot (there must be a minimum of 50% turnout and a majority vote in favour; and the strike must take place within 6 or 9 months. In some “important public services”, there is an added requirement that 40% of those entitled to vote do so in favour); and
  • notified to the employer within appropriate timescales and in the appropriate format (this includes notice of intention to ballot 7 days before, and notice of industrial action 14 days before).

There are, further, a number of expressly prohibited reasons for a lawful action. Police and prison officers cannot lawfully withhold services at all, even where the above conditions may be met.

Employees taking part in lawful or “protected” industrial action are protected from dismissal – any dismissal by reason of lawful industrial action will be considered automatically unfair. However, the action remains a breach of the employment contract and so employers are entitled to withhold pay for any periods not worked. Striking employees are entitled to “picket”, i.e. gather at or near their workplace and peacefully demonstrate. However there are (again) strict rules on lawful picketing.

In a recent change to the law, there is no ban on engaging temporary agency workers to perform the duties of staff engaging in industrial action. However, the High Court has granted unions permission to proceed with a judicial review of the underlying regulations – Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852).

With the upsurge in recent industrial action the government has proposed the introduction of new so-called “anti-strike” law, which will introduce minimum service levels for certain public sector services (e.g. fire and health services) – the Strikes (Minimum Service Levels) Bill. The bill, if enacted, will empower employers in these sectors to identify persons and work required to ensure the required minimum service levels. Failure to comply would lead to employees losing their protection against dismissal and unions being liable for damages in tort. The bill extends beyond fire and health services to education and transport. It is worth noting that during the recent nurses strike, even before this legislation, there was a national agreement to provide a minimum level of staffing in order to deliver safe industrial action.

The proposed law has been branded by some (including the Joint Committee on Human Rights) a breach of Article 11 European Convention on Human Rights (ECHR), which provides for the right to freedom of association for workers, including the right to form trade unions. We will, perhaps no doubt, see arguments put forward if this bill is enacted into law that dismissal for taking part in appropriately and democratically organised industrial action is not fair, proportionate and necessary in a democratic society. Some feminist campaign organisations have also identified that the bill may be discriminatory in that it disproportionately impacts women, because those public sector services impacted employ more women than men, with the result that the bill may therefore disproportionately affect women’s entitlement to strike over that of men.

In this fast-moving sphere our concluding thoughts are – watch this space.

Louisa Simpson

Louisa specialises in employment law, in particular cases involving discrimination allegations, and is regularly instructed to advise and represent in both contentious and non-contentious cases. For further information on Louisa’s practice, or to instruct her, please contact Jonathan Cue, Senior Civil Clerk or Dean Cunniff, First Junior Civil and Employment Law Clerk on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.

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