Dismissal During An Industrial Dispute

There you are booked on your annual holiday, about to fly with British Airways, everything looking good until you find that your flight is cancelled. Why? Because BA staff have walked out in sympathy with workers sacked by the company that supply BA with the airline food that you are no longer going to eat. Everyone ends up losing; your holiday is disrupted, the airline loses millions, the meal supplier loses money and talks about going out of business and people lose their jobs. How can it happen when we have so much regulation of the employer/employee relationship? Don’t ask me because I don’t have the answer! What it does show us is that there are likely to be no winners if the relationship between the workers and management breaks down completely, which is something both sides of industry need to remember.

Comment aside, let’s go back to employment law; what protection do workers have when they take part in a strike?

When Mrs Thatcher was in government the answer was “hardly any”. Employers could dismiss workers on strike and those workers could not bring a claim of unfair dismissal. Days lost through strike action naturally plummeted. However, some would say that the balance of industrial power had swung too far in favour of employers.

The current position is different and arguably more fair. If you are engaging in a lawful strike you are protected from being dismissed in the first twelve weeks of the strike. In a nutshell, a lawful strike is one that has been agreed upon following a ballot of all the workers who are involved. An example of what can happen is this: your union cannot agree an acceptable annual pay increase. Negotiations with your employer fail. The union tells your employer that it intends to ballot the workers on the question of strike action. A secret ballot is held and a majority of your colleagues vote for strike action. Proper notice of that action is given to your employer. On the notified day you and your colleagues start strike action. You are protected from being dismissed for twelve weeks and, if your employer does not try and resolve the dispute, sometimes longer. If you are dismissed in this period it will be an automatic unfair dismissal. You can bring a claim even if you have not been employed for one year.

From your point of view, any strike will cost you money which you are unlikely to ever see back. This means that withdrawing your labour is likely to be the last resort. However, the other side is that an employer who does not do all he can to reach agreement with your union now knows that he is also likely to lose money which he will never see back. Because of the balance between the two conflicting interests, most strikes do not last more than twelve weeks. Those that do are likely to be a disaster for all concerned.

Employees who break their contracts of employment by simply downing tools and going on strike without a vote being held through a secret ballot can normally be dismissed straight away. They have no claim for unfair dismissal.

Unless you as an employee don’t want to keep your job, a wildcat strike is probably a bit foolish, no matter how provoked you may feel. Unofficial industrial action is also unlikely to be supported by your union, not least because a union runs the risk of being sued by the employer if it is seen to support such action.

Particularly in view of the competitive pressures posed by the rest of the world, all of our futures are best served by partnership between both sides of industry rather than conflict