Dismissal and industrial action

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). The same applies to any later dismissals where the employee stopped taking the industrial action during the 12-week period. No minimum service is required. Protection extends beyond 12 weeks where the employer has failed to take reasonable procedural steps to resolve the dispute, for example, by failing to engage in collective conciliation through Acas. The 12-week “protected period” is also extended to include any time when employees are locked out (ERA 99 Schedule 5, section 238A TULRCA).

If the action lasts beyond the initial 12-week protected period, employees taking part are barred from claiming unfair dismissal unless they have been selectively dismissed. Selective dismissal is where some, but not all, striking workers are dismissed, or where all are dismissed but some are taken back within three months.

Once the three months have passed, employers can rehire whoever they want without risking unfair dismissal claims.

The point of these rules is to prevent employers picking and choosing who to take back (section 238 TULRCA). During the three-month period, the employer must take back everybody or nobody.

Employees dismissed during unofficial industrial action have no right to claim unfair dismissal (Section 237(1) TULRCA), although there are some exceptions, for example, if the dismissal is for reasons related to health and safety or working time, for requesting flexible working, acting as an employee rep or making a protected disclosure (section 237(1A) TULRCA). If action is unofficial, the employer can freely choose to dismiss some, but not all, of the strikers, without consequence.

To be barred from making unfair dismissal claims in the tribunal, employees must be taking the industrial action at the time of dismissal. If they have already returned to work and are then dismissed, they are not barred from bringing 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).

Whether someone is taking part in a strike is decided objectively. The test is what the employee did, not why (Lewis v E. Mason and Sons [1994] IRLR 4). In one case, an employee only took part so he could report back to the employer on what the strikers were up to. When everyone else was dismissed, he was not, and the employer 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.

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 some limited statutory protection against dismissal for official industrial action, they have no express statutory protection against action short of dismissal for taking official industrial action, as was demonstrated by experiences during the 2010 industrial dispute between cabin crew members of Unite and British Airways.