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 (see Chapter 6), and the dismissal took 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 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.



In any strike balloted on or after 1 March 2017, pickets will lose their protection from unfair dismissal if they picket without a picket supervisor, even if the strike is backed by a lawful ballot (Trade Union Act 2016 – see Chapter 6).


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). 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 statutory protection against action short of dismissal for taking official industrial action, for example the withdrawal of travel privileges to punish workers for taking industrial action, during the 2010 industrial dispute between cabin crew members of Unite and British Airways. This is likely to be a breach of the right to strike under Article 11 of the European Convention on Human Rights.