Protection from dismissal

[page 146]

Employees are protected from dismissal during the first 12 weeks of official industrial action (section 238A TULRCA). Dismissal during this protected period if the reason, or main reason, is that the employee took lawful industrial action is automatically unfair. There is no length of service requirement. See Chapter 11 on dismissal and industrial action.

The 12-week period can be extended if the employer has not taken reasonable steps to try to resolve the dispute, for example, by unreasonably rejecting an offer to reopen negotiations, or of mediation or conciliation.

Pickets lose their protection from dismissal, even if industrial action is lawful, if there is any failure to comply with the new picketing requirements under the TUA 16 (see above: Picketing).

Detriment short of dismissal

For many years, unions have been challenging the absence under UK law of any statutory protection for striking workers from detriment short of dismissal taken by an employer to deter them from striking, or to penalise them if they go ahead and participate in the strike.

Although UNISON led a successful challenge to this in the EAT, which held that planning, organising and participating in industrial action were “activities of an independent trade union” protected under the detriment provisions of section 146 TULRCA, the ruling was overturned on appeal (Mercer v Alternative Future Group Ltd [2022] EWCA Civ 379, see page 131). Permission has been granted to UNISON to take the case to the Supreme Court.