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Dismissing employees for industrial action is unfair

As pandemic-related government support for businesses starts to taper from the end of this month and with flexible furlough due to end altogether at the end of September, employers in some sectors will face difficult decisions impacting their workforce, including possible restructures and redundancies.

It is widely predicted that this will lead to increased industrial action so it is important for employers to understand the importance of employee engagement and the relevant rights and obligations as they navigate this challenging period.

Building and maintaining constructive employee relations is the key to successful change programmes. Where there is not an established employee forum, businesses may need to set one up so that employees have appropriate representatives as proposals are developed.

If relations are allowed to become poor, employers run a higher risk of facing ballots for strikes or other industrial action. Should this occur, active engagement with employees and their representatives is all the more valuable as it may by possible to find a way forward without industrial action taking place.

Where this is not possible, it is crucial that businesses are fully aware of their legal obligations. Dismissing employees for taking part in industrial action is automatically unfair (as long as it is called by a union that has complied with the ballot and notification rules).

Building and maintaining constructive employee relations is the key to successful change programmes.

However, the UK statute does not state that imposing lesser detriments on striking workers is prohibited. In Mercer v Alternative Future Group Limited, the Employment Tribunal found that  found although this was an infringement of the European Convention on Human Rights, it was not possible to interpret UK statute compatibly because it would go against the grain of the legislation.

The workers appealed and the Employment Appeal Tribunal has now found in their favour. It has decided that UK statute law can be interpretated so that participating in industrial action is within the scope of the protection against detriment for taking part in union activities.

Employers therefore need to be aware that if they withhold (for example) overtime, benefits or promotion opportunities from workers taking part in industrial action, they are likely to face tribunal claims, which can result in awards of compensation for losses and injury to feelings.

For advice on employee engagement and union relations matters, please contact our employment team.

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This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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