What action can an employer legally take when a dispute escalates into industrial action?
There is no right to strike under English law, but you wouldn’t know it judging by the number of industrial actions over the past few months. Schools have been turning away pupils, an oil refinery in Scotland shut down, and the coastguard went on strike for the first time in its history.
Last year saw a 37% rise in working days lost to strikes across the UK. But what can an employer do about it?
From the outset, an employer’s position may seem to be somewhat difficult. Unions may have immunity from being sued for harming a business through industrial action, and companies cannot take legal action against staff compelling them to work. And legal action seeking damages resulting from industrial action requires the employer to show financial loss, and non-unionised employees are just as protected as unionised ones, and different treatment may infringe their human rights.
Action
There are a number of measures employers can take:
- Seek to negotiate an end to the dispute.
- Treat partial action as a breach of contract, even where an employee has stuck to their job description.
- Order the employees not to come in to work.
- Deduct wages.
- Consider dismissals.
Unofficial strike action
A strike that includes staff who are unionised, but whose union has not endorsed the strike, is considered unofficial. Wide powers are available and the employer can selectively dismiss staff involved without notice and without following the statutory dismissal and disciplinary procedure. Be careful not to dismiss those who may have valid reasons for not being at work (eg, parental or authorised annual leave).
Official strike action
A union may endorse an unofficial strike after it starts, granting it official status. Strikes called by union shop stewards are also official unless subsequently denounced by the union. Employers’ powers in such cases are more limited. They cannot selectively dismiss, but can dismiss staff involved en masse, without following the statutory dismissal and discipline procedure. Consider remedies against the unions involved unless they organise a ballot of their members.
Protected strike action
A strike involving a valid trade dispute, where a proper secret ballot has been conducted is ‘lawfully organised’ and protected. The employer cannot sue the union, and striking staff are protected from dismissal for a period of up to 12 weeks. Any dismissal during this period will be automatically unfair. Protection starts from the time of the employee’s participation and not the strike as a whole. This period can be extended where the employer has taken no reasonable steps to resolve the dispute (eg, not following established dispute resolution procedures). Dismissal of staff that have fallen outside of the protection period must follow the statutory procedure.
Outcomes
By and large, tribunals take a dim view of employers that fail to show that they seriously negotiated with staff when collective workplace disputes arise. However, in some circumstances, talking simply may not be enough. These powers help employers find a way to get back to work when faced with such strikes.
Key points
Employers need to be aware of the actions they can take in different circumstances:
Unofficial strike action
Selective dismissal without following the statutory dismissal and disciplinary procedure.
Be stringent with checks that staff are not dismissed when they have a valid reason, such as parental leave.
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Protected strike action
Staff may be dismissed en masse without following the statutory dismissal and disciplinary procedures.
Be aware that unions can endorse an unofficial strike after it starts, thereby making it official.
Protected strike actionn
No selective dismissal allowed.
Employees are protected from dismissal for 12 weeks after the action starts.
Marie Van der Zyl, partner, Davenport Lyons
