Although strikes by employees are thankfully not a regular occurrence, statistics show an increase in strike action in the private sector relating to national and international issues, so it’s important to know what your rights are as an employer and what you can and can’t do if your staff decide to take industrial action. The right to strike in each country is impacted by regional and international law.
Our expert employment law solicitors tell you what you need to know when employees are going on strike and if you can dismiss members of staff taking industrial action.
What is industrial action?
‘Industrial action’ (going on strike) tends to occur when employees disagree with a business decision and want their employer to reverse it. For example, if you’re planning to reduce the number of working hours, your employees may go on strike to put pressure on you to change or alter these plans.
Going on strike is the most common form of industrial action, but for the purposes of the law on industrial action, it includes ‘action short of a strike’ – overtime bans, call-out bans, work-to-rules, sit-ins and work-ins.
When is industrial action lawful?
This is a crucial question. If industrial action is lawful (or ‘protected’ so the trade union is protected from claims for trade disruption and breach of contract), then you can’t sue the union and are restricted in your ability to dismiss striking employees.
Certain conditions must be met for industrial action to be lawful, including:
1. Trade dispute – the industrial action must be part of a dispute between you and your employees about employment-related issues which cannot be solved by informal negotiations or arbitration.
2. Ballot – the action must be supported by a properly organised ballot of union members. A majority of the members involved must support industrial action through the ballot. There have been some changes to the rules on this – see ’Haven’t the rules on strikes been tightened up recently?’ below.
3. Notification – as an employer, you need to be given:
- At least seven days’ notice before a ballot
- A copy of the ballot paper at least three days before the ballot
- Notification of the result of the ballot as soon as reasonably practicable
- At 14 days’ notice before industrial action is due to start
4. Not for a prohibited reason – industrial action can’t be taken for any of the following:
- Secondary action (supporting another strike which doesn’t involve that employee)
- Unlawful picketing
- Because an employee is supporting another employee who has been dismissed for involvement in unofficial industrial action
- Promoting closed-shop practices (getting you to agree to only employ union members)
If these conditions aren’t met, industrial action isn’t lawful and it won’t be automatically unfair to dismiss your employees for going on strike, even if the action is official. See ’Can you dismiss employees for going on strike?’ below.
Haven’t the rules on strikes been tightened up?
From March 2017, changes were made by the Trade Union Act 2016 to the pre-conditions for lawful industrial action:
- 50% turnout – at least half of those balloted need to cast a vote before it is valid. If the ballot is valid then a simple majority must vote in favour for the ballot to mandate industrial action, subject to special rules for key sectors (see below). So, for example, if 1,000 union members are entitled to vote in a ballot, at least 500 of those members would need to vote for the ballot to be valid. Say 600 had in fact voted, then a majority of them (301 members) would need to vote in favour of the industrial action.
- 40% support in key public sectors – in addition to the 50% turnout rule, where a majority of workers involved in the dispute are in key service sectors (health, education, fire, transport and border security), 40% of all eligible voters must vote in favour of industrial action.
- Six month limit - on a mandate for industrial action, after which there would have to be another ballot.
- Ballot papers – they must set out the nature of the issues in dispute, the types of action ‘short of a strike’ (if that’s what’s proposed) and an ‘indication’ of time periods for action (but this doesn’t mean specific dates).
- Union supervision of picketing – the requirements are now law rather than guidance.
Another significant change may be in the offing – the introduction of electronic voting. Trade unions had argued that one of the reasons for apparently low turnouts in strike ballots was the lack of e-voting and the Government has been considering the issue following the recommendations made in the independent review by Sir Ken Knight in 2017.
Can you dismiss employees for going on strike?
If employees go on strike, they’re breaching their employment contract. However, this doesn’t mean that you can dismiss them without the dismissal being classed as unfair. Your right to dismiss striking employees will depend on whether the industrial action is official or unofficial, and whether it’s lawful or not.
Dismissal of an employee for taking part in ‘official’ industrial action (authorised by the union) which is lawful (see ’When is industrial action lawful?’ above) is automatically unfair if you dismiss:
- Employees within the first 12 weeks of lawful industrial action for taking part (some employees might have protection from unfair dismissal for more than 12 weeks)
- Some workers but not others for taking part in the same action
- All employees but re-hire only some
Where industrial action is unofficial, or official but isn’t lawful, employees may be dismissed fairly, provided you don’t dismiss employees selectively or based on one of the automatically unfair reasons for dismissal, such as whistleblowing or pregnancy. (For more on automatic unfair dismissal, see our advice post What is a ‘fair’ dismissal?)
Do you have to pay employees who are on strike?
When employees go on strike, you don’t need to pay them for the days they’re not at work. The question of how much to deduct can be surprisingly problematic. If the employees are paid hourly, it’s easy, but if they are salaried, pay normally accrues from day to day based on calendar (not working) days, unless you specify something else about strike pay in the employment contract.
If the employees are acting ‘short of a strike’ (see ’What is industrial action?’ above), then you can’t deduct pay. You will either have to pay the employees in full or demand that they comply with their contracts in full or stay away from work, but that would of course be likely to inflame matters.
You can’t hire agency staff to cover striking workers (although any agency staff you’re currently employing are unaffected).
What can employers do to stop a strike?
As well as withholding pay, you can refuse to accept partial performance. So, if employees fail to fully perform their contract, you can inform them that you refuse to accept partial performance and make it clear to workers that if they attend work and don’t fully perform their duties, partial performance is voluntary and no payment will be made for any work done.
Whilst it is the case that in recent time judicial decisions have become more ‘union friendly’ and Courts will only grant an injunction to stop industrial action due to shortcomings in the constituency balloted by the union if it believes the union has acted in bad faith. You can bring a civil claim if an unlawful, unprotected act has happened or been threatened, the action breaks a contract that you’re a party to and you’ve suffered, or are likely to suffer, loss as a result, if the action isn’t lawful. For example if there’s been a breach of the balloting rules or you haven’t been given proper notifications (see ’When is industrial action lawful?’ above), you can apply to the court for an interim injunction to prevent the action from happening. An interim injunction is a temporary measure, and you’ll need a full court case to get a complete injunction, but an interim injunction is often all that is needed to put a stop to the action and allow you to sort out the issues with your employees.
If you’re relying on a breach of balloting rules, bear in mind that the union will have a defence if there have been ‘minor errors’.
You will need to act quickly if you’re applying for an injunction – the union only needs to give you 14 days’ notice of a strike.
If the strike has already gone ahead, you may be able to claim damages from the employees and union if it wasn’t lawful. Amounts are based on the union membership and subject to a statutory maximum (currently £250,000).
How can employers avoid industrial action?
You should try to avoid industrial action where possible. It can cause interruption to your business, may affect your reputation, and most importantly, indicates that your employees are unhappy.
You should talk to and consult with your employees at an early stage whenever you’re making changes that will affect them detrimentally, with a view to getting their agreement. Things you can do are:
- Call a meeting – to explain your reasons for making the changes and so that they can ask questions and air any grievances. Do this as early as possible, to give as much warning as you can.
- If there’s a trade union involved – you should hold meetings with union representatives to try and reach a compromise. You should also consider whether it’s worth inviting an independent mediator to your discussions.
- Send out information packs and letters – you could also send out information packs or letters, telling your employees about the changes you’re planning and asking for their comments within a certain period.
- Listen to your employees – it’s important that your employees feel that they’re being listened to and that their views are taken on board. You should give them as many opportunities to respond to your proposed changes as possible, and you should consider their issues.
Reaching a compromise early on may prevent industrial action. If your proposed changes need to be made and there are no other options, you should make this clear and, if possible, show that you’ve considered the alternatives and any issues raised. If the changes are driven by financial problems, explain that the alternative may be a restructuring.
There are several pitfalls to watch out for when attempting to get employees’ agreement to changes, such as:
- If there’s a trade union that is recognised for collective bargaining on employees’ terms and conditions, you have to go through them – if you try to bypass the union by making a direct approach to employees, this is an ‘inducement’ and is unlawful, attracting mandatory fixed fines. In Kostal UK Ltd v Dunkley, a 2017 case where a company attempted to persuade 50 employees to agree a new pay deal when pay negotiations with the union broke down, the unlawful inducement resulted in a fine of over £400,000.
- You should get express agreement – relying on the fact that employees can be assumed to have accepted the change because they have carried on working can be dangerous. In Abrahall v Nottingham City Council, the Court of Appeal found that an employer’s imposition of a two year pay freeze was invalid. Although the employees didn’t bring claims until two years later, they had protested to their trade unions at the time, and this was enough to prevent their continued work being regarded as acceptance of the pay freeze.
- Changes to a pension scheme may require consultation with employees
- If you’re thinking of making redundancies – which can include dismissing and re-engaging employees who don’t agree to changes – you need to take legal advice as there are strict rules about collective consultation and notifying the Government (and severe penalties for a failure to comply).