Legal issues during industrial action
You need to be aware of your own and your workers' legal position during industrial action.
When pickets try to persuade people not to go into work or not to deliver or collect goods, they may - in effect - be inducing them to break or interfere with the performance of their employment contracts.
They may also be interfering with the ability of the employers of those people to fulfil their commercial contracts.
Such inducement in the course of picketing is not itself lawful simply because the industrial action supported by the picketing is lawfully organised. For the picketing to be lawful, it must satisfy certain conditions laid down by the law.
These conditions include the following:
- that the picketing is at or near the pickets' own place of work
- that the purpose of the picketing is to peacefully obtain or communicate information, or to peacefully persuade a person to work or not to work
However, there are three exceptions to the rule that an inducement in the course of picketing has immunity only if it is done at or near the pickets' own place of work:
- a trade union official may accompany a member of their union whom they represent so long as the member is picketing at their own place of work
- a person - eg a mobile worker - who does not normally work at one particular place, or for whom it is impracticable to picket at their actual place of work, may picket at the premises of the employer for whom they work or from which the work is administered
- a person who is not in employment may picket at their former place of work in contemplation or furtherance of a trade dispute, but only if the termination of their employment gave rise to - or is connected with - the dispute in support of which they are picketing
Picketing that is not peaceful and, for example, leads to violent or abusive behaviour, intimidation or obstruction of the highway, is likely to involve offences under the criminal law. The law gives no protection to people who commit such offences in the course of picketing and they may be arrested and prosecuted by the police.
The Department for the Economy's statutory code of practice on picketing recommends that pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to a workplace.
Failure to observe the provisions of the code does not in itself render a union, or anyone else, liable to any legal proceedings. However, where proceedings are brought against a union, the provisions of the code are admissible in evidence, and may be taken into account by a court if they appear relevant to any question before it.
2. Notifying the employer before industrial action resumes
Where continuous industrial action is suspended, eg for further negotiations between the employer and union, the union must normally give the employer further notice before resuming the action.
The exception to this requirement is where the union agrees with the employer that the industrial action will cease to be authorised or endorsed with effect from a date specified in the agreement but that it may be authorised or endorsed again on or after another date specified in the agreement and the union:
- ceases to authorise or endorse the action with effect from the specified date
- subsequently reauthorises or re-endorses the action from a date on or after the originally specified date or such later date as may be agreed with the employer
For this exception to apply, the resumed industrial action must be of the same kind as covered in the original notice. This condition will not be met if, for example, the later action is taken by different or additional descriptions of workers. In order to avoid misunderstanding, both parties should put any agreement in writing.
3. Dismissal for taking industrial action
The dismissal of any striking employee during the first 12 weeks of lawfully organised official industrial action - the 'protected period' - will be deemed unfair if your reason for doing so is because the employee took industrial action.
The dismissal will also be unfair if the employee is dismissed after the protected period, but had stopped taking part in the industrial action before the end of the period.
If you 'lock out' your workforce during the protected period, the lock-out days are not counted when calculating the 12-week period.
The dismissal will also be unfair if:
- the employee is dismissed after the protected period - but had not stopped taking part in the industrial action before the end of the period
- you had failed to take reasonable steps to resolve the dispute
A dismissal can therefore be fair after the protected period if you can show that you made genuine attempts to negotiate a settlement with the trade union - including the proper use of any joint disputes resolution procedure, and have not unreasonably refused requests for third party conciliation or mediation.
Unfair dismissal claims may also be brought if you discriminate between employees by:
- dismissing some of those taking part in the action, but not others
- offering re-engagement selectively to some employees but not others within three months of the dismissal
An employee dismissed while taking part in unofficial action can't generally claim unfair dismissal. This is regardless of whether the employer has discriminated between those taking such action by dismissing - or re-engaging - only some of them.
However, there are cases where an employee who is dismissed during the course of unofficial industrial action will still be able to make a claim for unfair dismissal if they allege that the employer dismissed them for another reason. Generally these cases relate to family reasons, health and safety, employee representation and whistleblowing.
See dismissing employees.
4. Pay during industrial action
Where workers take strike action, they are in breach of contract and usually lose their right to pay for the hours they did not work. This may depend on the terms of the employment contract and the nature of the industrial action which the worker has taken.
The situation is more complex where workers take action short of an all-out strike, eg refusing to carry out particular duties. You may refuse to accept this conduct as satisfactory. However, if you accept partial performance of duties, you can't refuse to pay the worker for the part of the job they've carried out.