Beginner’s Guide to Strike Action

What is industrial action?

There are two types of industrial action:

• A strike, which is a stoppage of work by employees acting in concert.
• Other industrial action short of a strike (for example, an overtime ban, call-out ban, work to rule, go slow, work-in, and sit-in).

Industrial action need not be called by a union and those participating do not have to be members of a union. Industrial action includes the refusal by a group of employees to do anything, whether or not in breach of contract, as a bargaining weapon (Faust & others v Power Packing Casemakers Ltd [1983])

Is it a breach of the employment contract?

Going on strike, since it involves the unilateral withdrawal of the employees' labour, will amount to a breach of contract by the employee. Other industrial action will usually constitute a breach of contract, depending on the circumstances and the terms of employees' contracts.

Deduction of pay for days lost to a strike

If employees are on strike (that is, refusing to work at all), the employer need not pay them for the periods during which they are not working. If the contract specifies normal working hours and pay is calculated by the hour, then the deduction will be determined by reference to the hours lost. On the other hand, if the employees are paid a salary, then this is deemed to accrue from day to day (section 2, Apportionment Act 1870 (AA 1870)). However, section 7 of the AA 1870 allows parties to contract out of the principle of day to day accrual under section 2.

Dismissal – what is the legal regime concerning industrial action?

The rules preventing unfair dismissal for participating in industrial action are set out in Part 5 of Trade Union and Labour Relations (Consolidation) Act 1992. They are complex and depend on whether the industrial action is unofficial, official, or protected. Subject to certain exceptions and qualifications:

• The dismissal of an employee will be automatically unfair if they are dismissed for taking part or having taken part in official industrial action which is protected (238A).
• Employers are immune from unfair dismissal claims if an employee is taking part in unofficial industrial action at the time of dismissal (section 237), unless the dismissal is for one of the automatically unfair reasons.
• Where industrial action is official but not protected, the employer may dismiss all employees fairly; however, if the employer dismisses selectively or for one of the automatically unfair reasons, such dismissals will be automatically unfair (section 238(2)).