Although you are free to take industrial action without the courts being able to force you to return to, or stay at, work, you will probably be in breach of your employment contract in doing so. This means you will probably be sacrificing your pay and, depending on the circumstances of the strike, you may face dismissal. Therefore, if you are thinking about joining your colleagues on a strike, you should seek advice on your employment rights before doing so.
What are the implications of taking part in protected or unprotected industrial action?
If you intend to join in with a strike that is official action organised by your trade union in accordance with the law, then it will usually constitute ‘protected industrial action’, meaning that you will probably be protected from being dismissed as a result of it.
It is likely to be organised in such a way that it constitutes protected industrial action if:
- the dispute is a trade dispute between workers and their own employer;
- members have voted in a secret postal ballot and the majority have supported the action;
- the employer has been given detailed notice of the action at least seven days in advance;
- someone in the trade union with proper authority has called for the action.
However, even if the industrial action is official and organised by a trade union, it may be ‘unprotected’ if:
- the trade union fails to comply with any of the requirements outlined above or breaches any other industrial action laws;
- it has been disowned or repudiated by the trade union;
- it is secondary industrial action, i.e. in support of workers of another employer;
- it promotes ‘union labour only’ practices;
- it is in support of workers who have been dismissed for taking unofficial strike action.
You should not be dismissed for taking part in protected industrial action for 12 weeks or less. If you are, then you will be able to make a claim for unfair dismissal. If you are dismissed for taking protected industrial action for a period longer than 12 weeks, then this will only be unfair if the employer has failed to take reasonable steps to resolve the dispute with the trade union.
If you are dismissed for taking part in unprotected strike action, you cannot claim unfair dismissal unless you are dismissed:
- for an automatically unfair reason;
- as a result of taking part in the industrial action, but other colleagues who took part are not similarly dismissed;
- after you have stopped taking part in the ongoing industrial action.
What are the implications of taking part in unofficial industrial action?
If you take part in industrial action that is not organised by, or the responsibility of, a trade union then the action will be considered to be ‘unofficial’. If you are dismissed as a consequence of this, you will not normally be able to bring a claim against your employer for unfair dismissal. The same will apply if you take part in industrial action without being a member of a trade union, where members of a trade union are not taking part in it and it is not ‘official’ action.
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