Industrial disputes between employers and workforces are usually resolved by way of consultation and negotiation, often with the involvement of a trade union. However, where no agreement can be reached, industrial action by workers is then a distinct possibility.

The level of industrial action amongst the UK’s workforces is at its highest level for several years. After a long period of relative calm on the industrial relations front, 2022 has seen a significant increase in the number of people taking industrial action, including going on strike.

Primarily driven by the rapidly rising cost of living, a number of sectors and businesses have been hit by the threat of or actual strike action, including national railways, ports, BT, the Royal Mail, local authority refuse collectors and barristers who undertake work in the criminal courts. There is also the possibility of strike action by doctors, nurses, and teachers in the event that agreement on terms and conditions cannot be reached between employers and Trade Unions.

What is industrial action?

Industrial action takes many different forms but is generally categorised as either action short of striking and striking itself. The purpose of industrial action is for employees to put pressure on the employer to make concessions in respect of any given matter. Working to rule, for example, is action short of striking. A strike is the stopping of work by a group of employees in protest at the employer. That stoppage usually results in material disruption the employer’s operation and, in many cases, the provision of services to the public.

Strike action is often seen as the last resort in any industrial dispute. The serious nature of employees withdrawing their labour en masse is underpinned by the legal issues that arise out of a workforce going on strike.

Should your business finds itself faced with the prospect of industrial action, it is essential to consider a number the points set out below.

1. Generally it is considered that there is no ‘right to strike’. By going on strike, an employee will be in breach of contract by not working when required to do so. However, the law (essentially the Trade Union and Labour Relations (Consolidation) Act 1993 (TULRCA)), means that employers are unable to sue trade unions or dismiss employees (at least for a specified period after the industrial action begins) so long as certain  complex legal requirements are met.
2. The trade union could be liable to the employer for an industrial ‘tort’ if, in calling for its member employees to take industrial action, it has induced those employees to breach their contract of employment. A tort is a civil wrong and there are several elements to the union’s potential liability here. However, a trade union would be immune from being sued if it can show that:

• the industrial action was taken ‘in contemplation or furtherance of a trade dispute‘. TULRCA defines what a trade dispute is;
• the industrial action was not taken for a prohibited purpose under TULRCA;
• the industrial action does not amount to secondary action or unlawful picketing;
• there was a ballot that was compliant with the law in terms of its organisation and notification requirements.

3. A trade union can only call for industrial action after it has the majority of support following a ballot of its members. There are strict rules concerning the validity of ballots. For example, in order for a ballot to be valid, at least 50% of those entitled to vote in the ballot must actually vote. The majority is then taken from the number of votes actually cast in the ballot. In cases where the ballot is of workers involved in ‘important public services’, the required level of support is 40% of those who voted.
4. The trade union must give the employer sufficient notice of the intention to hold a strike and also send them a copy of the ballot paper at least three days before the ballot. TULRCA sets out the information that must be stated on the ballot paper.
5. If the ballot does not comply with the various legislative requirements, the industrial action may be unlawful and the employer could apply to the High Court for an injunction against the trade union (or in some cases against individuals) but with the main objective of preventing the strike going ahead. Furthermore, if the industrial action has already gone ahead, the trade union themselves could be sued for the industrial tort it committed. Damages are capped and based on the size of the union’s membership.
6. If striking employees are in breach of contract, can they be dismissed in the same way as any other employee who simply does not attend work? In short – no. Any dismissal during the first 12 weeks of lawful industrial action will be unfair if the employee stopped taking part in the industrial during that time or is dismissed for taking part during that time. Any dismissal for taking part in the industrial action after 12 weeks will be unfair if the employer has not taken reasonable steps to settle the dispute by way of a procedure eg, such as ACAS conciliation.
7. When industrial action is a possibility, employers sometimes ask us whether they can replace striking workers with agency staff. The law actually prohibits employers from using agency staff to cover for striking workers. Indeed, it is a criminal offence for an employment business to supply agency workers to cover for striking workers. Employers can still call upon their own bank staff or employees who are not taking part in the industrial action.

These observations are just a snap-shot of the issues that arise for the parties when workers go on strike. There is a great deal of risk planning to be done by employers as well as trying to establish whether any industrial action is lawful and also maintain service provision with as little disruption as possible.

For help and advice about industrial action, please get in touch with our friendly employment team on (01482) 325242 or email nick.wilson@andrewjackson.co.uk