The legal position is very complex and much depends on whether the employees are taking official or unofficial industrial action [ Unfair dismissal protection].
Employees dismissed whilst taking part in unofficial industrial action lose the right to claim unfair dismissal. If the action is official (i.e. authorised by the trade union), employees' unfair dismissal rights then depend on whether they are taking protected or unprotected industrial action.
In practice, most employees taking official industrial action will have protection from dismissal. This is because most industrial action campaigns last only a few days and it is automatically unfair to dismiss (or select for redundancy) employees on the grounds that they participated in properly balloted official industrial action where the dismissal occurs in the first 12 weeks of the employees starting to take part in the action. It is also automatically unfair to dismiss them after the 12-week period where the employees had in fact stopped taking the industrial action before the period had expired or where the action continued after the 12-week period but the employer had not taken reasonable procedural steps to resolve the dispute. The right to claim automatic unfair dismissal applies irrespective of an employee's age or length of service.
Once outside this protection, an employee will only have the right to claim unfair dismissal if he or she is selectively dismissed for taking part in the action or is selectively not re-engaged within 3 months of the dismissal. Such dismissals will not be automatically unfair but will be judged on ordinary principles and to claim, the employee must meet the usual qualifying criteria for the right to claim unfair dismissal relating to age and service [ Eligibility to claim].
The statutory dismissal procedure does not apply where at the time of the dismissal the employee is taking part in an unofficial strike or other unofficial industrial action, an official strike or industrial action which is not protected or where the dismissal is an unfair dismissal for taking protected industrial action. In simple terms, the procedure does not apply to the great majority of dimissals for, or whilst, taking part in industrial action.
As the risk of litigation is high, employers should seek advice from their EEF Association before taking any steps to dismiss employees taking industrial action.