Striking issues

The sit-in by Gate Gourmet staff and subsequent sympathy walkout by British Airways baggage handlers this summer prompted calls from trade unions for changes in the laws on industrial action. Martin Warren spells out how the law stands and what rights employers have

The recent high-profile dispute at Heathrow Airport has once again focused the attention of HR professionals on the complexities of employee rights during industrial action. The dismissal of 600 workers by Gate Gourmet over a dispute relating to working practices spread rapidly to its biggest UK client British Airways, with about 1,000 baggage handlers taking strike action in support of the Gate Gourmet workers.

Following this, the question arises: what is the legal position surrounding these workers? To answer, the type of industrial action needs to be classified. The law in this area is contained in the Trade Union and Labour Relations (Consolidation) Act 1992, which recognises three types of industrial action.

Unofficial action

‘Unofficial’ action is industrial action that has been formally renounced by the trade union whose members are involved in the action. Until the union makes this statement, it will be deemed official, therefore placing the union at the risk of legal action for an injunction and/or damages.

Any employees involved in an unofficial strike could be dismissed by their employer 24 hours after the union has declared the action to be unofficial or it is industrial action which is no longer ‘protected’ (see below) because it has been going on for more than 12 weeks.

Official action

The law also defines ‘official’ industrial action. This can take two forms:

  • Action organised by trade union officials in the absence of a ballot and where the union has decided not to renounce the action

  • Protected industrial action that has been going on for more than 12 weeks.

If, as an employer, you are faced with official industrial action, and you dismiss all employees who are participating in the action and do not reinstate any individuals within three months then no employee can complain of unfair dismissal.

However, if you selectively dismiss – or indeed selectively reinstate employees – then all those who have been dismissed can bring claims for unfair dismissal. Their dismissals will not be automatically unfair, but it will be for the employer to justify any dismissals which have occurred.

Protected action

Finally, there is what is known as ‘protected’ industrial action. This is industrial action which has taken place after the trade union involved has held a secret ballot which meets the requirements of the 1992 legislation.

In summary, this requires the trade union to organise a secret postal ballot, using ballot paper as prescribed by law, and serve the relevant legal notices to the employer before and after the ballot. Before the ballot, the employer must be notified about the ballot and the date on which it will start. Following the ballot, the employer must be informed of the number of votes for and against industrial action and, if the vote is in favour of action, information about the type of industrial action the union proposes to take.

Where a trade union holds such a ballot and where the dispute is the subject of a trade dispute, the trade union and the employees involved are protected from legal action by the employer.

Employees cannot be legally dismissed during the first 12 weeks of protected strike action – it is defined as an automatically unfair dismissal. If you then dismiss them after the first 12 weeks, the onus will be on the employer to persuade an employment tribunal that it has taken reasonable steps to resolve the dispute. In determining this, a tribunal has to consider whether:

  • the employer and the union complied with any procedural agreements

  • either side offered to start or recommence negotiations after the industrial action commenced

  • either side unreasonably refused a request that the arbitration and conciliation service Acas be used. The conduct of both sides during conciliation and mediation can also be taken into account.

Secondary strike action

At Heathrow, we saw the unusual events of secondary strike action in support of Gate Gourmet. In a legal context, secondary strike action is viewed as unlawful because it was outlawed (with the exception of action taken during picketing) in the 1980 Employment Act. However, it would still be regarded as official by law unless and until it has been renounced by the relevant trade union. Once this has happened it puts employees at risk of selective dismissal.

It seems reasonably clear that Gate Gourmet employees were initially engaged in what the law regards as official industrial action because their union, at least at local level, appears to have supported the action. However, it is still unclear whether the Transport and General Workers’ Union renounced the action.

Agency workers

During industrial action, employers might be tempted to import agency employees to cover for those employees on strike. But this is a high-risk strategy.

The Conduct of Employment Agencies and Employment Businesses Regulations make it a criminal offence for employment agencies to supply workers to replace employees engaged in industrial action, even if it is unofficial. While amended regulations have been proposed to narrow the scope of the current restriction, the restriction on the supply of agency workers during protected industrial action is likely to remain.

Although the law is the backdrop against which trade unions, employers and employees conduct themselves, certainly labour law is only part of the solution to any trade dispute. The dispute at Heathrow illustrates only too clearly the law alone is certainly not a complete solution.

Employees, particularly those engaged in unofficial industrial action, place their employment at risk, but it is also a risky strategy for employers to consider individual or group dismissals. Such actions may only serve to increase tensions and make it more difficult to resolve the underlying dispute.

Martin Warren is labour law expert and partner at Eversheds

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