8. Dismissal

Dismissal during industrial action

The law governing dismissals during industrial action is found in sections 237-238 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The first key issue is whether the action was official (i.e. the union authorised or endorsed it) or unofficial.

Only where the action is official, will the employees be protected from dismissal. Non-union members who take industrial action can be protected, provided that at least some of their group are members of a union which has authorised or endorsed it: section 237(2)(b) TULRCA.

As long as the sole or main reason for dismissal is because the individual participated in unofficial industrial action, the employee will not have the right to challenge the dismissal in the tribunal. Furthermore, there is no mechanism for examining how the industrial action came about — i.e. no assessment need be made as to whether the action was deliberately provoked by the employer.

In this way TULRCA effectively removes the ordinary safeguards against unfair dismissal that employees have come to expect. That is, unless the employee can show that the major or sole reason for dismissal was because s/he was a whistleblower or was being penalised for a reason related to family-rights, health and safety, working time or being an employee representative.

The second key issue is whether the industrial action is in breach of contract. Certainly if the action includes a strike, it will be. If the industrial action is unofficial but not in breach of contract, and the employer dismisses, it will have to do so in accordance with the notice due to the individual. Also worth bearing in mind is that the employer may itself be in breach of contract if it, for example, locks-out the employees.

Dismissal following industrial action

Under section 238A TULRCA, the dismissal of an employee for taking protected industrial action will be unlawful if:

• the dismissal took place within 12 weeks of the first day of industrial action;

• the dismissal took place more than 12 weeks after the first day of industrial action: provided that the employee stopped taking part in industrial action before the end of the 12 week period; or

• the dismissal took place more than 12 weeks after the first day of industrial action: in the situation where the employer failed to take reasonable steps to resolve the dispute.

The 12-week period can be extended if following the beginning of industrial action, the employer “locks-out” the employees. In that situation the protected period stretches by the number of days that the lock-out ran.

As to the issue of whether the employer has taken reasonable steps to resolve the dispute, the statutory tests are set out in section 238A(6) TULRCA:

• was any collective agreement on taking industrial action followed by the employer/union;

• was there an offer to start or restart negotiations after industrial action began;

• did either the employer or union (once the industrial action had started) unreasonably refuse to go to conciliation; and

• did either the employer or union (once the industrial action had started) unreasonably refuse to go to mediation to try to agree a procedure for resolving the dispute.

Under section 238B TULRCA conduct at conciliation/ mediation can also be taken into account. In particular:

• were the parties represented by an appropriate person (e.g. someone with authority to handle/ settle the dispute);

• did the parties co-operate in arranging meetings;

• did the parties fulfil a commitment to take certain action; and

• did the parties answer reasonable questions put to them.

Also, the Employment Relations Act 2004 requires employers to try to resolve disputes where conciliation or mediation has been agreed. At such meetings a person who has authority to resolve the dispute, must represent employers.

Selective dismissal following industrial action

Under section 238(2)(a) TULRCA, if an employer responds to the taking of industrial action by dismissing some but not all of the relevant employees, that decision can be challenged. Specifically, if the employer does try to selectively dismiss, those whose employment was terminated will be able to bring claims for unfair dismissal.

Selective rehiring following industrial action

Under section 238(2)(b) TULRCA, if an employer who has dismissed employees for taking industrial action, selectively rehires, that decision can be challenged. In particular, for a three-month period, either the employer (or an associated successor entity) rehires the entire workforce, or none of the workforce. (Bear in mind that there is nothing to stop the employer offering substantially less advantageous terms and condition to the group). If the employer does try to selectively rehire, those not offered new employment will be able to bring claims for unfair dismissal.

Time limit to claim for dismissal

Where the industrial action that occurred was lawful, complaints about dismissal (i.e. selective dismissal and/or selective rehiring) must be brought within six months (section 239(2) TULRCA). However, a tribunal may exceptionally be willing to hear a claim lodged later than this, provided that it is satisfied that it was not reasonably practicable for the individual to lodge the claim earlier.