Strikers

Taking strike action before or during a redundancy period can affect employment rights in the following ways:

• in general, strike action during an employment contract does not break continuity of employment, but time spent on strike does not count towards continuous service. For example, an employee with seven years’ service who has taken 20 days of strike action will have those 20 days deducted from the seven years to calculate the length of continuous employment. This is unlikely to affect most workers, as the amount of strike action over the course of employment is normally insignificant. It will be an issue for those employees with close to the minimum two years of service required for an unfair dismissal claim or a statutory redundancy payment;

• where strike action takes place before the start of the statutory notice period, section 238A of TULRCA protects employees from dismissal for the first 12 weeks, as long as the strike action is lawful (official and properly balloted). Employees taking part in unofficial strike action have no protection against unfair dismissal or the loss of their redundancy pay; and

• lawful strikes that begin after redundancy notices have been issued will not jeopardise the entitlement to redundancy pay, but the employer can require an employee who has taken strike action during the notice period to work beyond the notice expiry date for the number of days they were on strike (section 143 ERA 96).

Employees are also barred from redundancy pay rights if they resign during an employer’s lockout. This situation is specifically excluded from the definition of a redundancy dismissal by section 136(2) of ERA 96.

Lockouts are rare in British industrial relations but 2012 saw the return of this method of forcing workers to accept terms and conditions with the first one in Britain for over 50 years. The lockout at Austrian-owned carton printer Mayr-Meinhof Packaging led to the eventual dismissal of 149 workers following protests over unfair redundancy terms.