A recent ruling has clarified the employer's position when dismissing unofficial strikers.
HR professionals should know that employees who are dismissed while participating in an unofficial strike or unofficial industrial action are barred from claiming unfair dismissal under section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992. Industrial action will be deemed unofficial if it is not authorised or endorsed by a trade union.
Some issues relating to this exclusion from the right to claim unfair dismissal were explored recently by the Employment Appeal Tribunal (EAT) in the conjoined appeals of several staff who had been dismissed in August 2005 during a period of unofficial industrial action against Gate Gourmet, which supplied in-flight food to British Airways. While the claims of each of the appellants had failed before the employment tribunal and their appeals also failed before the EAT, three appeals gave rise to interesting issues:
One employee did not attend work for two days of the strike but "kept his head down". He was dismissed when he attempted to return to work on the third day. As he was trying to return to work, he was not participating in unofficial action at the time of his dismissal. He was therefore able to claim unfair dismissal.
However, the original tribunal held that his dismissal for not working on the first two days was fair, and the EAT agreed. The EAT held that, while the withdrawal by an employee of his labour will not necessarily justify dismissal in every case, it is within the range of reasonable responses to dismiss an employee where he deliberately absents himself in a manner plainly liable to do serious damage to the employer's business. It also held that nothing in the case law from the European Court of Human Rights or the European Court of Justice on the right to strike deprives employers of the right to dismiss employees for having participated in unofficial action.
Another employee, who was a trade union official, was found to have participated in the unofficial action by virtue of his attendance at a staff meeting in a canteen. His appeal failed. The employment tribunal was entitled, as a matter of fact, to decide that the union offici