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Dismissal while on strike
Employees are automatically unfairly dismissed if the reason or main reason for dismissal is that they took part in official industrial action, and the dismissal took place during the first 12 weeks of the action (the “protected period”) (see Chapter 9: How the law aids employers). No minimum service period is required.
Protection will extend beyond twelve weeks where the employer has failed to take reasonable procedural steps to resolve the dispute (for example, by engaging in collective conciliation through Acas).
The 12-week “protected period” is also extended to include any time when employees are locked out.
After 12 weeks, an employer wanting to dismiss some strikers must dismiss all of them. It cannot pick and choose. None of the dismissed employees can be offered their jobs back for three months after the date of dismissal unless all the strikers are offered their jobs back. Once three months have passed after the dismissal date, employers can take back who they want without the risk of unfair dismissal claims.
Employees on strike during unofficial industrial action can be dismissed and will have no right to claim unfair dismissal (Section 237(1) Trade Union and Labour Relations Consolidation) Act 1992). If the action is unofficial, the employer can choose to dismiss some but not all of the strikers, without consequence.
Whether an individual is taking part in a strike is decided objectively. The test is what the employee did, not why:
Mr Britton was instructed to drive a van without a heater. He refused and was dismissed. At the end of the day’s work, his colleague Mr Lewis attempted to intervene on his behalf and informed the employer that no one would work unless the dismissal was reversed. All the other drivers were then dismissed. On application to the tribunal, the EAT upheld a finding that they had been “taking part in strike action” and that the tribunal had no jurisdiction to hear their case.
Lewis v E. Mason and Sons [1994] IRLR 4
In one case, an employee only took part in a strike to enable him to report back to the company on what the strikers were up to. When everyone else was dismissed, he was not, and the company tried to argue that he had not really been taking part in the strike. The EAT disagreed, saying his motive for taking part was irrelevant.
Workers must actually be taking industrial action when dismissed. If they have already returned to work and are then dismissed, they are not barred from making unfair dismissal claims. Whether or not they were taking industrial action is a question for the tribunal, not the employer, to decide (Jenkins v P & O Ferries [1991] ICR 652).
The International Labour Organisation (ILO), the body responsible for regulating employment law worldwide, has repeatedly condemned UK law for allowing the dismissal of strikers, saying it breaches international standards.
Although employees have statutory protection against dismissal for official industrial action, they have no statutory protection against action short of dismissal.