On strike: Industrial action questions answered   

This summer has seen a surge in industrial action largely related to rising inflation and the hugely publicised cost of living crisis. Further planned strikes are currently due to go ahead on 27 July, 30 July, 18 August and 20 August. This is expected to cause severe disruption and we answer some commonly asked questions below. 

What is industrial action? 

Industrial action is any action taken by employees working in concert with each other to disrupt production or business with a view to settling a dispute with their employer. This is commonly in relation to improving working conditions and/or pay. It is a last resort when consultations between employee representatives and the employer have failed. 

There are different types, the most common is a strike which is when employees refuse to work as we have seen recently with railway workers. However, other forms include refusing to work any overtime, work to rule (when employees perform their duties strictly to the letter of their contract with the aim of slowing down production or disrupt business) and sit ins (when workers occupy the employer’s premises). 

Whether it is threatened or actually takes place, it can be disruptive and costly to not only employers but to commuters and the general public too. 

Is industrial action lawful? 

There is no positive legal right to industrial action in the UK and nearly all is potentially unlawful as it often involves employees breaching their employment contracts. However, action organised by a trade union will be legal providing that they have followed strict and specific rules. Providing these rules are followed then both trade unions and employees who participate in it can gain protection against liability. 

If employers can identify any failures to follow the rules then they may use this in negotiations with the trade union or even as the basis to stop the action through the Courts. 

What are the requirements for it to be protected? 

It will be protected if the union has endorsed/authorised the action and satisfies various criteria including that it is in contemplation or furtherance of a narrowly defined trade dispute. 

Trade unions can only call for it if the majority support of a properly organised ballot. There are key requirements which they must follow including: 

• They must give notification of the ballot to employers of any employees entitled to vote of no later than 7 days before the ballot and a copy of the voting papers not later than 3 days before the ballot; 
• There must be a turnout of least 50% of the union members entitled to vote; 
• They must take reasonable steps to announce the result of the ballot (including the number of votes for and against) as soon as reasonably practicable; 

• They must give notice of the action to the relevant employer of at least 14 days before the start; 
• Any action must take place within 6 months from the date of the ballot. This can be extended up to nine months if the trade union and employer agree. 

Can it be challenged? 

If the above conditions are not met then employers may be able to challenge. Common reasons for being able to challenge are shortcomings in the balloting and notification procedures. Identifying such shortcomings can be particularly useful for employers.  

If it is not protected, employers may be able to obtain an injunction preventing the action from taking place.  

Do employees have to be paid whilst taking part? 

As it involves a breach of an employee’s contract then the employer will be able to avoid paying all or part of the salary depending on several factors. 

If employees are on strike (refusing to work at all) then the employer will not need to pay them for the periods during which they are not working.  

If employees take action short of strike which does not involve a breach of contract then they will be entitled to be paid in full. It is likely to be a breach of some kind though and so employers may either demand employees comply with their contract in full or stay away from work (and not be paid) until they are prepared to comply in full or accept partial performance. This can be a complex area and we would recommend employers seek legal advice.  

An employee will not be able to pursue a claim for unlawful deduction from wages if industrial action is the reason for the deduction. 

Can employees be dismissed for taking part? 

The rules regarding are complex and depend on whether the it is unofficial, official, or protected. 

The dismissal of an employee will be automatically unfair if they are dismissed for taking part or having taken part in official strike which is protected and the dismissal takes place during a period of 12 weeks from the date that the employee started participation in.  

Are there any upcoming changes to the law? 

The Government appears to be making attempts to reduce the impact it has on the public. In June 2022 they announced a new law allowing employers to use agency staff to cover workers who are on strike which came into effect on 21 July 2022.  

The reforms were to help ensure crucial public services and people’s daily lives remain uninterrupted by staff strikes. However, such change would render it much less effective and it has been reported that it has been met with opposition and is likely to be challenged in the Courts.