What are your rights and protections for being involved in industrial action?

Protection against dismissal

If the industrial action is organised lawfully, then an employee cannot be dismissed for striking during a ‘protected period’ of the first 12 weeks of lawfully organised official industrial action. If the employee is dismissed in this protected period, the dismissal will be deemed unfair if the reason for dismissal is because the employee took part in industrial action.

The dismissal will also be unfair after the protected period if the employee has continued taking part in the industrial action after the end of that period but the employer has not taken reasonable steps to resolve the dispute.

Unfair dismissal claims could also be brought if an employer was discriminatory in their dismissal of employees who took part in the action, for example dismissing or reinstating some participants but not others.

Employees dismissed while taking part in unsanctioned, unofficial industrial action generally can't claim unfair dismissal. This generally even includes dismissal for the aforementioned discriminatory reasons, although claims for dismissal for other reasons (such as health and safety issues or whistleblowing) may still be preserved.

Pay during industrial action

When employees strike, they are in breach of their employment contract and therefore will usually lose their right to pay for the period they did not work. This may depend on the terms of the individual contract and the circumstances of the industrial action.

Where a strike or other industrial action involved partial performance of an employee’s duties the situation can be less clear, as an employer who has accepted partial performance of an employee’s duties cannot then refuse to pay the employee for that part of the job they have performed.

Re-engagement of employees

If an employer dismisses employees during industrial action, they may choose to then re-engage them later. An employer can re-engage employees on whatever terms the employer chooses. However, for the first three months, the employer cannot selectively re-engage some employees and not others, and they must offer the same terms to all dismissed workers; after three months, the employer can offer to re-engage any of the employees.

If you are affected by industrial action – whether as an employee or an employer – you should seek legal advice from an employment solicitor. Employees may also choose to approach their trade union official. If you are an employee, an employment solicitor can provide you with advice on your rights and protections for being involved in industrial action.

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