Going On Strike

Industrial disputes are costly and damaging to companies and employees alike. Any organisation's culture and procedures should seek to avoid any potential conflict before it arises. However, this isn't always possible.

Dealing With Industrial Disputes

If a dispute arises, it's important to meet with representatives of your employees as soon as possible in order to try to resolve the situation. The initial meeting should be to define the cause of the dispute, to clarify who speaks for which side and to explore what options are available to resolve the conflict.

For a dispute to be lawful it must be a 'trade dispute'. This means it must be a dispute between workers and their own employer and it must be wholly concerned about employment related matters, e.g. pay, working conditions, jobs, discipline etc. A trade union is legally responsible for organising industrial action and it is only legal if the Trade Union authorises or endorses the action. Authorisation would take place before the industrial action starts and endorsement after it has started as unofficial action. A strike ballot should not take place until any agreed procedures have been completed and all other means of resolving the dispute have been looked at. Employers can take legal action against any trade union which calls for strike action before a secret ballot has taken place.

By law, unions must give 7 days' notice of strike action to an employer stating that it intends to hold a ballot, the date on which the union reasonably believes the ballot will take place and any other information the union has which will help the employer make plans. The union must also give the employer a sample voting paper at least 3 days before the ballot. If the company has several sites, a separate ballot may need to be held at each workplace where strike action is proposed.

If workers vote in favour of strike action, it must begin within 4 weeks of the ballot taking place. This period may be extended up to 8 weeks after the ballot but only if the union and the employer both agree to it.

During Strike Action - Legal Issues

The dismissal of any striking employee during the first 12 weeks of lawfully organised official strike action will be deemed unfair. If, as an employer, you lock out your workforce during this protected period, the lock out days are ignored when calculating the 12 week period. However, you can dismiss an employee after the 12 week period if you can show you have made genuine attempts to negotiate. This must include the proper use of any joint disputes resolution procedure.

Unfair dismissal claims may also be brought if you discriminate between employees by dismissing some of those who have taken part in the action but not others or if you've re-employed some employees but not others within 3 months of the dismissal. However, an employee dismissed whilst taking unofficial action cannot claim Unfair Dismissal.

Employees who are on strike and their union representatives can legitimately picket their own workplace and are protected from legal action as long as the picketing is peaceful, causes no obstruction, does not intimidate others and there is no damage.

Secondary action is not protected and those involved can be sued or prosecuted for damage. Secondary action encompasses picketing by non-employees, picketing of connected businesses, e.g. suppliers and sympathetic strikes by employees who are not in dispute with their own employer.

Pay During Strike Action

Where employees take strike action, they are inevitably in breach of their contract and lose their right to pay. The situation is more complex when employees take action short of an all-out strike, e.g. refusing to carry out particular duties. If an employer carries out partial duties, you cannot refuse to pay the employer for the part of the duties they have carried out, although they are not entitled to full pay.

Following Industrial Action

An employer may re-employ a worker dismissed during strike action on whatever terms the employer chooses, providing the same terms are offered to all the employees who were dismissed. During the 3 months following dismissal, an employer cannot selectively re-employ some workers and not others but after the 3 months are up, the employer has the right to choose who he/she re-employs if necessary.