Employment law clinic: Industrial disputes

The Challenge: After negotiations between management
and the trade union to settle a pay dispute have broken down, the union tells
the HR manager that it is contemplating strike action. When the managing
director is informed, she tells the HR manager that if anyone goes on strike,
they will be sacked. She wants to offer a bonus to those willing not to join or
to leave the trade union. Charlotte Hamer, professional support lawyer at
Stephenson Harwood, considers some of the legal and practical implications

Legal issues

At common law there is no right to strike, and therefore for an employee to
do so is a breach of contract. A union which calls or supports a strike may be
liable on the grounds of, inducing a breach of contract, for example, or
interfering with a contract. The remedies for these breaches are either
financial or, in the case of employees, could result in their employment being
terminated.

If, however, certain statutory requirements are met, then statute provides
immunity from common law liabilities (but not a right to strike). The relevant
law is primarily found in the Trade Union and Labour Relations (Consolidation)
Act (TULRCA) 1992.

The strike must relate to the contemplation or furtherance of a trade
dispute – a dispute between the workers and the employer about one of a number
of specified matters. These include terms and conditions of employment and the
membership of unions.

Certain procedural requirements must also be followed. Essentially, these
are that members of the trade union have been balloted, the majority are in
favour of strike action and notice has been given to the employer. Both
procedures have rigid requirements, such as the scrutiny of the ballot by an
independent scrutineer and the provision of information in the notice to the
employer.

If the statutory requirements have been met, dismissing the employee for
going on strike amounts automatically to unfair dismissal, but only if the
dismissal is within eight weeks of the start of the strike; or the employee
stopped striking within eight weeks (but the dismissal occurred later than
eight weeks). Or dismissal occurred after eight weeks, the employee remained on
strike for more than eight weeks but the employer did not take reasonable
procedural steps to resolve the dispute.

If the dismissal does not fall within the above exceptions, then it may not
be unfair – but only if all the employees on strike are dismissed and none are
re-engaged by the employer within three months of the dismissal (unless all of
them are).

Article 11 provides for the right of freedom of association, including the
right to form and join trade unions, but this does not include the right to
strike. The European Court of Human Rights has held that while an injunction
preventing a strike was a restriction of the union’s powers to protect its
interests, it was justified.

Wilson v UK, 2002, IRLR 568 made it clear that providing financial
incentives to those not in a trade union is a breach of the Convention on Human
Rights, enshrined in UK law under the Human Rights Act 1998.

The employees and union only have protection if the strike complies with
TULRCA. If it does:

– No dismissals on the spot may be made

– Dismissals not within the exceptions may only occur if all employees are
dismissed

– Offering a bonus to those who do not join the union is a breach of human
rights

HR issues

– Ensure any strike is conducted in accordance with TULRCA at each stage as
an injunction preventing it may be sought if TULRCA is not followed

– Keep the channels of communication open

– Ensure the union is aware of the reasons for the employer’s position

– Consider if there can be a trade-off with other workplace concerns the
union may have

Remember, bad relations with the union could result in bad relations with
those they represent.

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