Industrial action dismissals (2)
The second in our series of guidance notes on industrial action examines the extent to which employees dismissed while taking industrial action can claim unfair dismissal.
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It is automatically unfair to dismiss an employee for taking part in official, lawfully organised industrial action within the first 12 weeks of that action.
Once the 12-week period has expired, it remains unfair to dismiss the employee if the employer has failed to take such steps as are reasonable to resolve the dispute.
If the employer has taken such steps, or if the action was not lawfully organised, an employee who is dismissed while taking industrial action will usually be able to claim unfair dismissal only if the employer has failed to dismiss all of those taking part in the action or has offered re-engagement to some - but not all - of the dismissed employees within a three-month time limit.
Where there has been selective re-engagement, the reason for the dismissal is the reason that re-engagement was not offered to the claimant.
With some limited exceptions, an employee who is taking part in unofficial industrial action will be unable to claim unfair dismissal even if the employer has engaged in selective dismissals or selective re-engagement.
Unofficial industrial action is action not authorised or endorsed by the trade union - but the involvement of any union officials in the action will normally prevent the action from being unofficial.
Action may be rendered unofficial if the union repudiates it as soon as reasonably practicable after becoming aware of the action.
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We saw in our first guidance note on industrial action (Industrial action: (1) The individual contract of employment) that most forms of industrial action amount to a breach of contract on the part of the employee. This article is concerned with the extent to which the employer can respond to that breach of contract by dismissing the employee. This is obviously a politically charged issue, and the periodic intervention of both Labour and Conservative governments has led to a legislative scheme that is dauntingly complex.
Essentially, the extent to which an employee dismissed as a result of taking industrial action can claim any protection under unfair dismissal law depends on the nature of the industrial action taken. For these purposes, the law divides industrial action into three categories:
"protected" industrial action;
official industrial action that is not protected; and
unofficial industrial action.
We shall look at how the law treats each of these categories in turn.
One of the key employment law reforms introduced by the Labour government elected in 1997 was the provision of specific protection against dismissal for employees taking part in industrial action.
Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) was introduced by the Employment Relations Act 1999. It created a new category of "protected" industrial action, and provides that - subject to a number of conditions - a dismissal for taking such action is automatically unfair. Employees enjoy this protection irrespective of their length of service and even if they have reached the age limit for claiming unfair dismissal (s.239( 1) of TULR(C)A).
The defining characteristic of protected industrial action is that it is official industrial action that has been organised lawfully. The distinction between official and unofficial industrial action is discussed in detail below, but, in practice, official industrial action almost invariably means action that has been authorised or endorsed by a trade union. Where action is official, s.238A( 1) of TULR(C)A provides that it will be protected only if the union has complied with all the statutory requirements for the organisation of lawful action (relating to industrial action ballots, the notification of employers and the calling of the action itself), with the result that the calling of the action is not actionable in tort by virtue of s.219.
If the action has been authorised or endorsed by a union and the strict rules on ballots, etc have not been followed, the action will not be protected and the employees' position in relation to any dismissal will be that described below with regard to official action that is not protected.
Where the industrial action is protected, s.238A of TULR(C)A provides for a "protected period", which is essentially a period of 12 weeks running from the first day of the protected industrial action. Where the employer institutes a lockout during the protected period (a rare contingency in modern employee relations), the clock stops running and the protected period is extended by the length of the lockout. It should be noted that the protected period was only eight weeks when first introduced by the Employment Relations Act 1999, but was extended to 12 weeks with effect from 6 April 2005 by the Employment Relations Act 2004.
Automatically unfair dismissals
Any dismissal for taking part in industrial action during the 12-week protected period will be automatically unfair. It is important to note that the protected period relates to the individual employee's participation in the industrial action. As a result, in determining whether the protected period is still operative, it is necessary for the employer to establish when each individual employee began to participate in the action and not just when the action as a whole was commenced. By virtue of s.238(7D) of TULR(C)A, the period of protected industrial action can begin even though a lockout might be in force on that day.
The date of the dismissal for the purposes of industrial action dismissals is different from that in unfair dismissal cases generally. Section 238(5) of TULR(C)A, which applies to s.238A dismissals by virtue of s.238A(9), provides that, when the employer is dismissing with notice, the date of dismissal is the day on which notice is given, not the date when it takes effect. An employer that gives notice of dismissal during the protected period cannot, therefore, avoid liability by providing for the notice to expire after the end of the protected period.
It seems likely that the clock continues to run if the action taken by the employee is intermittent - a series of one-day strikes, for example. Since such a series would usually be supported by a single industrial action ballot, each individual strike would be regarded as forming part of a single course of protected industrial action. The 12-week period runs from the first day of action in which the employee takes part. It is not necessary for the employee to be on strike for the whole duration of the period and there is no provision for "stopping the clock" for periods between strikes when the employee is working normally.
Once the 12-week period has come to an end, under s.238A(4) of TULR(C)A, it remains automatically unfair to dismiss employees who stopped taking part in the action before the protected period for taking part in the action expired.
Where employees continue to take part in the action beyond the protected period, the fairness of any dismissal depends on whether the employer has taken reasonable procedural steps to resolve the dispute (s.238A(5) of TULR(C)A). If such steps have not been taken, the dismissal will be automatically unfair. If the employer has taken such steps, then an employee's ability to claim unfair dismissal is governed by the rules relating to unprotected official industrial action discussed below.
Reasonable procedural steps
A key priority for the Labour government in providing a right not to be dismissed for taking part in lawful strike action was to ensure that the courts were not drawn into considering the merits of industrial disputes or whether the industrial action was in itself justified. For this reason, s.238A of TULR(C)A focuses on the taking of procedural steps to resolve a dispute and expressly provides that, in determining whether reasonable steps have been taken, "no regard shall be had to the merits of the dispute" (s.238A(7)).
Section 238A(6) of TULR(C)A provides that, in deciding whether or not an employer has taken reasonable procedural steps to resolve the dispute, regard must be had in particular to whether either side:
complied with procedures established under any applicable collective (or other) agreement;
offered or agreed to negotiate once the protected industrial action had started; or
unreasonably refused to use conciliation or mediation services once the action had started.
It should be noted that a refusal to take part in arbitration (at the conclusion of which the arbitrator makes a binding decision) is not a matter to which a tribunal must have specific regard. It may, however, be something that the tribunal chooses to consider in an appropriate case.
Steps relating to the use of conciliation or mediation services - such as those offered by Acas - can be controversial in the context of an industrial dispute. One side may be sceptical about the extent to which the other is genuinely trying to seek a resolution of the dispute, suspicious that the other is simply going through the motions. To address these concerns, the Employment Relations Act 2004 inserted s.238B into TULR(C)A to provide a whole range of matters to be taken into account in deciding the extent to which an agreement to use conciliation or mediation services amounts to taking reasonable steps to resolve the dispute. Section 238B came into force on 6 April 2005.
Essentially the matters to be taken into account in this context are:
Whether either side sent an appropriate person to attend conciliation or mediation meetings. In relation to the employer, this means a person with sufficient authority either to settle the matter or to make recommendations for settlement to the employer. In relation to the union, this means the person who is responsible for handling the matter on behalf of the union. If either side were to send only a junior representative, this would indicate that reasonable steps to settle the dispute were not being taken by that party.
The extent to which either side has cooperated in the making of arrangements for meetings to be held with the conciliator or mediator. If, for example, the employer agreed to mediation but then insisted that no one was available to attend any meetings for at least three months, this would not be likely to persuade a tribunal that appropriate procedural steps had been taken.
Whether either side has abided by any commitment given during mediation or conciliation to take particular action. This could be an undertaking to produce a certain set of figures, for example, or to carry out a particular piece of research or analysis.
Whether the sides attending the conciliation or mediation answered any reasonable question put to them in the course of the meeting. If one side attends the meeting but sits in stony silence, clearly it should not be given much credit for agreeing to take part in conciliation or mediation.
It is worth noting that, while these requirements are phrased in terms of looking at the steps taken by both the union and the employer, it is of course the extent to which the employer has taken procedural steps that the tribunal must consider. The union's behaviour is, however, relevant in that the employer will not be expected to take extensive procedural steps to settle the dispute if the union is showing no interest in such a settlement.
Subsections 238B(8) and (9) of TULR(C)A limit the extent to which conciliators or mediators may be drawn into the question, by providing that their notes of meetings may not be used in evidence and that they should not give evidence disclosing confidential information given by either party without that party's consent. They can also refuse to give evidence about whether particular questions put to either side were "reasonable".
Official industrial action that is not protected
Before the concept of protected industrial action was introduced by the Employment Relations Act 1999, dismissal in relation to most industrial action was covered by s.238 of TULR(C)A. This provides that an employee who is dismissed while the employer is instituting a lockout or while the employee is taking part in industrial action that is neither unofficial industrial action nor covered by the protection given by s.238A (described above) cannot claim unfair dismissal unless either:
at least one or more relevant employees of the same employer have not been dismissed; or
the employee has not been offered re-engagement, but at least one relevant employee has been offered re-engagement within a three-month period starting with the date of his or her dismissal.
Now that s.238A of TULR(C)A is in place, s.238 applies only where:
the industrial action has been authorised or endorsed by a trade union but the union has not followed the applicable rules on industrial action ballots, etc so that the union has lost the tortious immunity that it would otherwise have had under s.219 of TULR(C)A;
the industrial action was protected, but the protected period has now come to an end and the employer has taken such procedural steps as are reasonable in order to resolve the dispute;
the industrial action was protected, but the employee was dismissed for some reason other than taking industrial action; or
the industrial action was neither authorised nor endorsed by a trade union, but the action is not treated as unofficial because no one taking part in the action is a trade union member (see below).
It is important to note that in cases governed by s.238 of TULR(C)A, the actual reason for the dismissal is not the key issue. Dismissals for taking "protected" industrial action under s.238A must have the taking of that action as the reason or principal reason for dismissal. In cases governed by s.238 there is no need for the dismissal to be for the reason that the employee has taken part in industrial action. What matters is that there has been selective dismissal or selective re-engagement.
The reason for dismissal is not, however, entirely irrelevant. Under s.238(2A) of TULR(C)A, an unfair dismissal claim can proceed as normal, despite the fact that the employee was taking industrial action, if the reason for dismissal (or the reason that the employee was selected for redundancy, if redundancy is the reason) was one of a number of "automatically" unfair reasons for dismissal set out in the Employment Rights Act 1996 (ERA), specifically those referring to jury service, family reasons, health and safety, employee representatives, flexible working and time off for dependants.
Selective dismissals or selective re-engagement
The general purpose of s.238 of TULR(C)A is to prevent an employment tribunal ruling on the fairness of a dismissal that has taken place in the context of the "industrial warfare" of industrial action. It is not the function of the tribunals to regulate collective disputes, but to uphold individual rights. Jurisdiction to consider industrial action dismissals covered by s.238 is, therefore, limited to circumstances where the individual has been victimised in the sense that not all of the employees taking part in the action have been dismissed or that the employer has selectively re-engaged one or more employees within three months of dismissal.
In effect, therefore, s.238 provides a significant level of protection against dismissal in that it essentially forces an employer to dismiss either all employees taking part in the action or none of them. When a whole workforce is taking part in action, it will be in only rare and extreme circumstances that an employer will feel able to use the option of dismissing all of those taking part.
By providing that a tribunal shall not consider the fairness or otherwise of the dismissal, s.238 prevents the tribunal from making any ruling as to the rights and wrongs of the dispute. The consequence of this is that s.238 can exclude an employee's right to claim unfair dismissal even where the industrial action was provoked by the employer, or was a response to unreasonable or coercive conduct by the employer or indeed a serious breach of contract: Wilkins and others v Cantrell and Cochrane (GB) Ltd.
Who was taking part in the action?
The most common difficulty in applying s.238 of TULR(C)A is in determining whether a "relevant employee" has either not been dismissed or has been re-engaged within three months of dismissal. A relevant employee is one who was taking part in the action at the time that the complainant was dismissed or who, in the case of a lockout, was "directly interested in the dispute" (s.238(3)).
In many cases it will be clear exactly who was participating in the action at the time of an employee's dismissal. However, the employer must be careful. Failure to dismiss even one employee who is later found to have been taking part in the action will mean that all of those employees who have been dismissed will be able to bring unfair dismissal claims.
Whether a particular employee was taking part in the action is a question of fact for the tribunal to decide: Coates and Venables v Modern Methods and Materials Ltd. It is no defence for the employer to argue that it did not realise that a particular employee was taking part in the action: Manifold Industries v Sims and others.
Tribunals have shown some reluctance to hold that they have no jurisdiction to hear unfair dismissal claims if the facts can be interpreted in a way that allows them to find that there has been selective dismissal or re-engagement. For example, an employee may be held to be taking part in industrial action even if he or she has not yet had occasion to withhold any labour. In New Venture Carpets Ltd v Vincent & orsboth the night and day shifts in a factory indicated that they intended to strike over the issue of the working temperature. The day shift had worked normally while management consulted with the Health and Safety Executive. When the night-shift employees arrived and refused to work in the low temperature they were dismissed. The EAT upheld the tribunal's finding that this amounted to a selective dismissal: at the time the night shift was dismissed, the day shift was also taking part in the industrial action. Although the day-shift employees had not actually had the chance to withhold their labour, they had expressed a clear intention to do so and this amounted to participating in the industrial action.
Much of the case law in this area has been concerned with employees who are off sick when industrial action in which they would otherwise be expected to take part takes place. In Hindle Gears Ltd v McGinty and others, the EAT held that an employee who had been off sick and had presented certificates to that effect since well before a particular strike began was not participating in the action. As a result, the fact that he was not dismissed did not mean that those employees who were could bring unfair dismissal claims.
On the other hand, an employee who has been taking part in the action, or indicated an intention to do so, is likely to be held to be still taking part even if at the time that other employees are dismissed he or she happens to be too ill to work. In Bolton Roadways v Edwards and othersthe EAT held that an employee was taking part in industrial action even though he phoned in sick on the morning of the strike. The tribunal had found that he was taking part because, before falling sick, he had actively associated himself with the action, offering support and advice to a group of pickets. The EAT held that the fact that the employer did not know of these activities was irrelevant. He had been taking part in the action and the employer's failure to dismiss him meant that those employees who had been dismissed could claim unfair dismissal.
Tribunals will also disregard the reasons behind an employee's participation in action. The Court of Appeal in Coates and Venables v Modern Methods and Materials Ltdaccepted that an employee who did not cross a picket line because of her fear of being abused by the pickets was taking part in the action even though she was motivated by fear. An employee is judged by his or her actions, not motivations.
An employer does not have to dismiss all of the employees at the same time in order to exclude the possibility of unfair dismissal claims. In P & O European Ferries (Dover) Ltd v Byrnethe Court of Appeal held that the date by which all employees who were taking part in the action needed to have been dismissed was the date of the conclusion of the tribunal hearing on the question of jurisdiction.
In other words, if dismissed employees allege that a particular employee who had been taking part in the action was not dismissed, then the employer can still avoid their claims by dismissing the named employee at any time before the tribunal hearing. Of course, if the industrial action was no longer taking place at the time of that dismissal, the employer would face a potential claim from that particular employee. However, it might take the view that it is better to face a single unfair dismissal claim than to have to defend the claims of all the other employees who were dismissed during the industrial action.
If all employees have been dismissed, they may still claim unfair dismissal if the employer makes selective offers of re-engagement to employees within three months of the original dismissals. Re-engagement in this context means re-engagement either in the same job or in a different job that would be "reasonably suitable" in the employee's case (s.238(4) of TULR(C)A). In Highlands Fabricators Ltd v McLaughlinthe EAT held that an employer did not have to make an offer of re-engagement to all of the dismissed employees at the same time. The employer has until the end of the three-month period to make offers of re-engagement. Only if the claimant was not offered re-engagement by the end of that period could it be said that the offers of re-engagement were selective.
Where an employee can claim unfair dismissal under either s.238 or s.238A of TULR(C)A, the time limit for bringing a claim is six months from the date of the dismissal (s.239(2)). This means that an employee can wait until the end of the three-month period following dismissal and will still have three months to bring an unfair dismissal claim if it appears that there has been selective re-engagement.
Selective re-engagement - the reason for dismissal
In cases of selective re-engagement, there are also particular provisions relating to the reason for dismissal. Section 239(3) of TULR(C)A provides that, where there has been selective re-engagement, the reason for dismissal for the purposes of deciding whether or not the employee has been unfairly dismissed shall be taken to be the reason, or principal reason, why the employee was not offered re-engagement.
Thus, if individual A is dismissed for taking part in strike action, and individual B, who was also dismissed, is offered re-engagement because B happens to be related to the supervisor who re-engages him, A will be able to claim unfair dismissal. The reason for A's dismissal will not be his or her participation in the industrial action. Instead, the reason for the dismissal will be that individual A was not related to the supervisor. This is not a potentially fair reason for dismissal under s.98(2) of the ERA and the dismissal will therefore be unfair. Even if there was a potentially fair reason for failing to re-engage, the tribunal would have to be satisfied that the employer acted reasonably in that regard for the dismissal to be fair.
There are few cases on the fairness of industrial action dismissals - most of the case law focuses on whether the tribunal has jurisdiction to consider the matter at all. Clearly, since taking part in industrial action is likely to be a breach of contract, an employer should have no difficulty in showing that the reason for the dismissal was the employee's conduct. However, perhaps surprisingly, the statutory minimum dismissal procedures introduced by the Employment Act 2002 do apply to industrial action dismissals under s.238 of TULR(C)A where the tribunal has jurisdiction because of selective dismissal or re-engagement. A failure to follow those procedures would, therefore, render the dismissal automatically unfair (s.98A of the ERA).
For a discussion of the levels of compensation for unfair dismissal in the context of industrial action, see below.
The most sweeping exclusion of unfair dismissal rights is to be found in s.237 of TULR(C)A, which provides that an employee has no right to claim unfair dismissal if he or she was taking part in an unofficial strike or other unofficial industrial action at the time of the dismissal.
Unlike the situation under s.238 of TULR(C)A, this exclusion applies even if the dismissals are selective. An employer is free to single out individuals for dismissal and can offer re-engagement to selected individuals without giving employees who are left out any claim for unfair dismissal.
The only limitation on the dismissal of those taking unofficial action is that certain categories of automatically unfair dismissal still apply. It remains unfair to dismiss, or select for redundancy, on the grounds of jury service, leave for family reasons, health and safety issues, being an employee representative, requesting flexible working, making a protected disclosure or time off for dependants (s.237( 1A) of TULR(C)A).
Section 237(2) of TULR(C)A provides that industrial action in relation to an employee is assumed to be unofficial unless:
a trade union has authorised or endorsed the action and either the employee is a member of that union or some other participants in the action are members of that union; or
none of those taking part in the action is a member of a trade union.
If either of these two conditions is met, the action will fall within either s.238 or s.238A of TULR(C)A, discussed above.
It should be noted that, in considering membership of a trade union, membership unconnected with the employment is disregarded. If a number of non-union members go on strike, the fact that one of them is a member of a trade union in connection with another job that he or she has or had will not render the action unofficial (s.237(6)). However, where an employee is a member of the union at the start of the action, the employee is treated as continuing in membership for these purposes even if he or she resigns from it (s.237(6)).
In most cases the key issue is whether or not the action has been authorised or endorsed by the union. If it has not, the action will be unofficial and selective dismissal will be allowed. If the union has authorised or endorsed the action, either the action is lawful and amounts to protected industrial action under s.238A, or it is unlawful, and s.238 applies, allowing claims of unfair dismissal if there is selective dismissal or re-engagement.
The question of whether the union has authorised or endorsed the action is governed by s.20(2), which takes a very wide view of the circumstances in which a union will be taken to have authorised or endorsed action. It provides that a union will be taken to have authorised or endorsed any act if it was done by, or authorised or endorsed by:
any person empowered by the rules to do, authorise or endorse acts of that sort;
the principal executive committee or the president or general secretary of the union;
any other committee of the union (defined as any group of persons constituted in accordance with the rules of the union); or
any other official of the union (whether employed by it or not).
This provision is so wide that most so-called wildcat action will not in fact be unofficial. Even if the executive of the union is against the action, the probability is that at least one union official (perhaps a local shop steward) will have authorised or endorsed the action. If, for example, an ad hoc strike committee is formed independently of the union and the local shop steward is a member of that committee, any action for which it calls will be regarded as being authorised or endorsed by the trade union.
Truly unofficial industrial action is, therefore, quite rare. However, action that has been authorised or endorsed by a union may be rendered unofficial if the union repudiates the action as "soon as reasonably practicable" after the action comes to the knowledge of the executive, president or general secretary. Although this may not seem a very comradely act - it denies the employees involved any real protection against unfair dismissal - repudiation may be unavoidable. If the action has not been properly organised and balloted on, continuing to endorse it would leave the union open to legal action from the employer, which could lead to the sequestration of its assets.
When a union repudiates action, it must give written notice of the repudiation to the authorising committee or official in question without delay. It must also "do its best" to give written notice of the fact and date of the repudiation to every member of the union who is taking part in the action and to the employer (s.21(2) of TULR(C)A). The notice of repudiation must contain the following statement:
"Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal."
When a union repudiates industrial action, this has the effect of rendering the action unofficial. However, it does not do so until the end of the next working day after the day on which the repudiation has taken place (s.237(4) of TULR(C)A). Nevertheless, this gives striking employees very little time to digest the potential consequences of the change in the status of their action and the fact that they are essentially to lose any unfair dismissal rights that they may have had.
Compensation for unfair dismissal
We have seen that there are circumstances in which an employee who is dismissed while taking industrial action may succeed in an unfair dismissal claim. The question that arises is the extent to which the compensation payable as a result is affected by his or her participation in what is almost certainly a fundamental breach of contract. Can the employee's participation in the industrial action be regarded as "conduct" that has contributed to his or her dismissal, thus allowing the tribunal to reduce the compensation payable?
This question was answered definitively by the House of Lords in Crosville Wales Ltd v Tracey and others (No.2). Their Lordships held that it was not appropriate to attach individual blame to an employee for what was essentially collective action. Mere participation in collective industrial action could not, therefore, amount to contributory fault. However, if the employee had engaged in conduct over and above mere participation, this was something that the tribunal could legitimately take into account.
Compensation for industrial action dismissals can also be affected by the application of the statutory minimum dismissal procedures introduced under the Employment Act 2002. Under the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752), the dismissal procedures do not apply if the employee was taking part in unofficial action at the time of the dismissal. Nor do they apply where the employee is dismissed for taking part in protected industrial action - and the dismissal is automatically unfair as a result. However, they do apply where the employee was taking part in other industrial action (covered by s.238 of TULR(C)A) and the tribunal has jurisdiction to hear the complaint because there has been selective dismissal or re-engagement.
This means that an employee who wins an unfair dismissal claim will have his or her compensation enhanced by between 10% and 50% if the employer has not followed the minimum statutory dismissal procedure.
Entitlement to a redundancy payment
Employees who are guilty of gross misconduct and are either summarily dismissed or dismissed with shorter notice than the minimum required will not be entitled to a redundancy payment even if the real reason for the employer choosing to dismiss them is redundancy (s.140(1) of the ERA). This would clearly be applicable in relation to most forms of industrial action.
However, if the employee takes strike action after the employer has given notice of redundancy, he or she will still be entitled to a redundancy payment even if subsequently dismissed for taking part in the strike (s.140(2) of the ERA). This will apply only if the strike takes place within the "obligatory" notice period (s.140(5)) - the minimum period of notice required.
The upshot of this is that an employee who seeks to fight threatened redundancies by taking strike action will be vulnerable to losing his or her redundancy pay unless the employee waits until formal notice of redundancy is given and he or she has entered into the "obligatory" notice period. If the action is in response to the threat of redundancies, then the employer can avoid making redundancy payments by summarily dismissing employees who take part in strike action.
Conclusion
In the first article of this series (Industrial action: (1) The individual contract of employment) we saw that industrial action is likely to amount to a fundamental breach of contract on the part of the employee. This second article has shown that there are nevertheless important restrictions on the ability of an employer to dismiss employees engaging in such conduct. If the action has been lawfully organised, any dismissal during the first three months of the action will probably be unfair. Even once that period has ended, the employer is forced to respond to collective action in a collective way - by dismissing all of those taking part in the action or face unfair dismissal claims. It is only in the relatively rare circumstance of wholly unofficial action that employees are left without protection against dismissal.
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Trade Union and Labour Relations (Consolidation) Act 1992 … Loss of unfair dismissal protection 237 Dismissal of those taking part in unofficial industrial action (1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action. (1A) Subsection (1) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in or under - (a) section 98B, 99, 100, 101A(d), 103, 103A or 104C of the Employment Rights Act 1996 (dismissal in jury service, family, health and safety, working time, employee representative, protected disclosure and flexible working cases), (b) section 104 of that Act in its application in relation to time off under section 57A of that Act (dependants). In this subsection "redundancy case" has the meaning given in section 105(9) of that Act; and a reference to a specified reason for dismissal includes a reference to specified circumstances of dismissal. (2) A strike or other industrial action is unofficial in relation to an employee unless - (a) he is a member of a trade union and the action is authorised or endorsed by that union, or (b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed. Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union. (3) The provisions of section 20(2) apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union. (4) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal. Provided that, where an act is repudiated as mentioned in section 21, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place. (5) In this section the "time of dismissal" means - (a) where the employee's contract of employment is terminated by notice, when the notice is given, (b) where the employee's contract of employment is terminated without notice, when the termination takes effect, and (c) where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires; and a "working day" means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971. (6) For the
purposes of this section membership of a trade union for purposes unconnected
with the employment in question shall be disregarded; but an employee who was
a member of a trade union when he began to take part in industrial action
shall continue to be treated as a member for the purpose of determining
whether that action is unofficial in relation to him or another
notwithstanding that he may in fact have ceased to be a member. |
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Trade Union and Labour Relations (Consolidation) Act 1992 238 Dismissals in connection with other industrial action (1) This section applies in relation to an employee who has a right to complain of unfair dismissal (the "complainant") and who claims to have been unfairly dismissed, where at the date of the dismissal - (a) the employer was conducting or instituting a lock-out, or (b) the complainant was taking part in a strike or other industrial action. (2) In such a case an employment tribunal shall not determine whether the dismissal was fair or unfair unless it is shown - (a) that one or more relevant employees of the same employer have not been dismissed, or (b) that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement. (2A) Subsection (2) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in or under - (a)section 98B, 99, 100, 101A(d), 103 or 104C of the Employment Rights Act 1996 (dismissal in jury service, family, health and safety, working time, employee representative and flexible working cases), (b)section 104 of that Act in its application in relation to time off under section 57A of that Act (dependants). In this subsection "redundancy case" has the meaning given in section 105(9) of that Act; and a reference to a specified reason for dismissal includes a reference to specified circumstances of dismissal. (2B) Subsection (2) does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of section 238A below. (3) For this purpose "relevant employees" means - (a) in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and (b) in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action. Nothing in section 237 (dismissal of those taking part in unofficial industrial action) affects the question who are relevant employees for the purposes of this section. (4) An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case. (5) In this section "date of dismissal" means - (a) where the employee's
contract of employment was terminated by notice, the date on which the
employer's notice was given, and |
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Trade Union and Labour Relations (Consolidation) Act 1992 238A Participation in official industrial action (1) For the purposes of this section an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of section 219 is not actionable in tort. (2) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) as unfairly dismissed if - (a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and (b) subsection (3), (4) or (5) applies to the dismissal. (3) This subsection applies to a dismissal if the date of the dismissal is within the protected period. (4) This subsection applies to a dismissal if - (a) the date of the dismissal is after the end of that period, and (b) the employee had stopped taking protected industrial action before the end of that period. (5) This subsection applies to a dismissal if - (a) the date of the dismissal is after the end of that period, (b) the employee had not stopped taking protected industrial action before the end of that period, and (c) the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates. (6) In determining whether an employer has taken those steps regard shall be had, in particular, to - (a) whether the employer or a union had complied with procedures established by any applicable collective or other agreement; (b) whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action; (c) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used; (d) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute; (e) where there was agreement to use either of the services mentioned in paragraphs (c) and (d), the matters specified in section 238B. (7) In determining whether an employer has taken those steps no regard shall be had to the merits of the dispute. (7A) For the purposes of this section "the protected period", in relation to the dismissal of an employee, is the sum of the basic period and any extension period in relation to that employee. (7B) The basic period is 12 weeks beginning with the first day of protected industrial action. (7C) An extension period in relation to an employee is a period equal to the number of days falling on or after the first day of protected industrial action (but before the protected period ends) during the whole or any part of which the employee is locked out by his employer. (7D) In subsections (7B) and (7C), the "first day of protected industrial action" means the day on which the employee starts to take protected industrial action (even if on that day he is locked out by his employer). (8) For the purposes of this section no account shall be taken of the repudiation of any act by a trade union as mentioned in section 21 in relation to anything which occurs before the end of the next working day (within the meaning of section 237) after the day on which the repudiation takes place. (9) In this
section "date of dismissal" has the meaning given by section 238(5). |
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Bolton Roadways v Edwards and others [1987] IRLR 392 |
