You can't just sack the strikers

With the credit crunch causing firms to freeze and lower pay, strikes by employees are likely to increase. But employers have to tread carefully when dealing with strikers, as lawyers Clare Thomas and Gagandeep Prasad explain.

THE PROBLEM

The recent strike by London's tube workers has raised questions about what amounts to lawful strike action. Employers need to be alert to the issue, as it's a complex area and it is vital to be able to respond effectively and correctly.

THE LAW

An employer needs to consider its legal position in respect of both the union and employees. The rules for each are, in the main, distinct: the fact that a union is protected from legal action for organising a strike does not necessarily mean that participants cannot be dismissed or have their pay stopped.

Where a union has called a strike following a successful ballot of its members, unfair dismissal protection extends not only to members of the union, but to all employees who participate in the action, despite the fact that non-union members do not have an entitlement to vote in the ballot.

Industrial action is either official, unofficial or protected.

• "Official" action - where the individuals are members of a union which has endorsed it.
• "Protected" action - where the union has properly conducted a secret ballot and the action is in response to a valid trade dispute.
• "Unofficial" action - any other industrial action.

Consequently, a strike in which none of the participants are union members cannot be "protected", although it will always be treated as "official"; that is, from the employees' point of view, it will be treated as if it had been called by a union but without a ballot.

The significance of the categorisation is that employees who are dismissed while taking part in unofficial industrial action cannot normally claim unfair dismissal. If employees are taking part in official industrial action, they cannot normally claim unfair dismissal if the employer dismisses all of them, but can make such a claim if the employer selectively dismisses or selectively offers re-engagement, or if the industrial action is "protected".

EXPERT ADVICE

This is a potentially tricky area of the law and it is crucial to take advice as to the validity of the action being taken and what exactly an employer can do.

Practically speaking, to avoid the disruption that industrial action will mean, employers are advised to consider involving the independent conciliatory service ACAS to assist in negotiations when facing the prospect of industrial action.

Often there are disputes about whether action is authorised by the relevant union(s) and this can be one way for employers to challenge the action. In other cases, there are disputes about whether the balloting rules have been complied with.

Often employers seek to end the disruption by dismissing participants. Employers should take advice before doing so, as the distinction between the different types of industrial action will determine the extent to which the employer is protected against unfair dismissal claims. Unfair dismissal claims are currently capped at just over £70,000, so it could be costly for the employer to get it wrong.

Even for those employers who do not formally recognise any unions, union officials may still attend disciplinary or grievance meetings as a companion to an employee who is a union member.

In addition, the ACAS Code warns employers to exercise caution if they are disciplining a union representative, as this may be seen as an attack on the union. Employers are advised to discuss the case with a full-time union official after obtaining the employee's agreement.

TO DO CHECKLIST

• Consider whether the dispute can be resolved before industrial action occurs.
• Establish the type of industrial action that is being taken - ie, official, unofficial, protected.
• Take advice as to whether the action is authorised and potential ways to challenge it.
• Determine what is required to meet the demands of the business and to bring an end to the action.

BEWARE!

Dismissal for participation in industrial action is technically a misconduct dismissal and, as such, the ACAS Code would apply. This could potentially mean an uplift of an additional 25% of compensation for failure to follow the code.

CONTACTS

mailto:clare.thomas@charlesrussell.co.uk
gagandeep.prasad@charlesrussell. co.uk