Industrial disputes

During industrial action - legal issues

You need to be aware of your and your employees' legal position during industrial action.

Dismissal

The dismissal of any striking employee during the first twelve weeks of lawfully organised official strike action will be deemed unfair. If you "lock out" your workforce during this "protected period", the lock-out days are ignored when calculating the twelve-week period.

A dismissal can be fair after this period if you can show that you made genuine attempts to negotiate. This must include the proper use of any joint disputes resolution procedure.

Unfair dismissal claims may also be brought if you discriminate between employees by:

• dismissing some of those taking part in the action, but not others
• offering re-engagement selectively to some employees but not others within three months of the dismissal

In these circumstances, you are required at least to follow minimum statutory disciplinary and dismissal procedures or the dismissal will be automatically unfair. For more information see our guide on handling disciplinary and grievance issues.

An employee dismissed while taking part in unofficial action can't claim unfair dismissal.

Picketing and secondary action

Employees who are on strike can picket their own workplace. Union representatives can picket the workplace of those they represent. The pickets are protected from legal action so long as the picketing:

• is peaceful
• causes no obstruction
• does not intimidate others
• causes no damage

Secondary action is not protected and those involved can be sued or prosecuted for damage. Secondary action can be:

• picketing by non-employees
• picketing of connected businesses, eg suppliers
• sympathetic strikes by employees not in dispute with their own employer

Pay during industrial action

Where employees take strike action, they will inevitably be in breach of contract and lose their right to pay.

The situation is more complex where employees take action short of an all-out strike, eg refusing to carry out particular duties. You may refuse to accept this conduct as satisfactory. If you accept partial performance of duties, you cannot refuse to pay the employee for the part of the job that they have carried out.

Subjects covered in this guide

• Introduction
• Avoiding industrial disputes
• Dealing with industrial disputes
• Effective negotiating
• Before industrial action takes place - legal issues
• During industrial action - legal issues
• Following industrial action - legal issues
• Trade union recognition
• Collective bargaining

 

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