If your business faces industrial action

Overview

If there’s a workplace dispute at your business, you should try to resolve it informally or through an impartial third party (arbitration).

You could work with a trade union to solve a dispute as well as with non-union employee representatives.

If you can’t resolve a dispute, workers in a recognised trade union may consider taking industrial action.

A trade union can only call for industrial action if:

• the dispute can’t be solved by informal negotiations or arbitration
• a majority of the members involved support it through a postal ballot (before organising one, the union has to decide which members it wants to ask to take industrial action)

Types of industrial action might include a strike, or action short of a strike, eg not working overtime.

If workers go on strike, you don’t have to pay them for the hours lost.

Using agency workers to cover during a strike

Agency workers already in place as part of your normal business can carry on as usual.

Dismissing workers who take industrial action

As an employer, you may face unfair dismissal claims if you dismiss:

• employees within the first 12 weeks of lawful industrial action for taking part
• some workers for taking part in the action, but not others
• all employees but re-hire only some of them

Lawful industrial action

Trade unions only have statutory immunity (ie they and their members are protected from legal action in civil law) if the industrial action is lawful.

When industrial action is lawful

There must be:

• a trade dispute (ie a dispute between you and your workers about employment-related issues)
• a properly-conducted industrial action ballot
• a written notice of industrial action sent to you

The industrial action must not:

• be secondary action, ie taken by workers whose employer is not involved in the trade dispute
• be in support of an employee dismissed for taking unofficial industrial action
• promote closed-shop practices (ie when employers agree to employ only union members) or enforce trade union membership against non-union firms
• involve unlawful picketing

When civil proceedings can take place

If the union or individuals don’t follow these conditions, they don’t have statutory immunity. This means that you and anyone else affected by the industrial action can take civil proceedings in the courts as long as all the following apply:

• an unlawful, unprotected act has happened or been threatened
• the action breaks a contract that you’re a party to
• you’ve suffered, or are likely to suffer, loss as a result

Strike pay and working records

You can ask your employees if they’re planning to strike, so that you can tell what effect the strike will have - but they do not have to tell you their plans.

Deducting pay

You don’t have to pay employees who are on strike.

If workers take action short of a strike, and refuse to carry out part of their contractual work, this is called ‘partial performance’. If you refuse to accept partial performance, you must tell employees that:

• they should only attend work if they fulfil their contractual duties
• if they don’t fulfil the terms of their employment contract, you don’t have to pay them

If you do accept partial performance, you must still pay employees for any work that they have done.

How much pay to deduct during a strike

You should only deduct the amount that the employee would have earned during the strike. How you work this out may depend on how they are paid (eg hourly, weekly or monthly) and on the terms of their employment contract.

You can’t deduct an employee’s pay if they weren’t supposed to be working on the day of the strike.

Effect on continuous employment and length of service

If employees return to work after the strike, their continuous employment is not affected, ie they continue to be employed by you. This means that the terms and conditions of their employment contracts still apply during and after the strike.

However, days when they were on strike don’t count towards their total length of service - this may be important for working out things like statutory redundancy pay or pensions.

Picketing during strikes

During the strike, workers and union reps may stand outside the place of work to explain why they’re striking and try to persuade others to join the strike. This is called picketing. It’s only lawful if it’s:

• carried out near or at the strikers’ usual place of work (unless they are mobile workers)
• done peacefully, without abusive or threatening behaviour
• not breaking any criminal laws, eg damaging property or obstructing roads

You may be able to take legal action if picketing is unlawful.

Non-union employees and strikes

You can ask non-union employees to cover work during a strike, as long as:

• this is allowed by their employment contracts
• you don’t discriminate against any employee directly or indirectly

Non-union staff and striking

If non-union members go on strike, they are protected from dismissal and have the same rights as union members, as long as the industrial action is lawful.

Agency staff

Agency staff who are already in place as part of normal business can carry on as usual.