Dismissal and industrial action 




It is automatically unfair to dismiss employees for taking took part in official industrial action (see Chapter 6) where the dismissal takes place during the first 12 weeks of the action (the “protected period”). Any later dismissal will also be automatically unfair, if the employee stopped taking the industrial action during the 12-week period. No minimum service is required.
Protection extends beyond 12 weeks if 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 (ERA 99 Schedule 5, section 238A, TULRCA). 




If the industrial 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 who are dismissed during unofficial industrial action cannot claim unfair dismissal (Section 237(1), TULRCA). 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.




Under the Trade Union Act 2016, pickets lose their protection from unfair dismissal if they picket without a picket supervisor, even if the strike is backed by a lawful ballot (see Chapter 6, page 182).



To be barred from making unfair dismissal claims, the 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 prevented from bringing claims. Whether or not they were taking industrial action is 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). 




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 statutory protection against detriment short of dismissal for taking official industrial action (see Chapter 6, page 187).