There are a number of possible responses that an employer might make to individuals who take part in industrial action, ranging from dismissal through to deductions from pay or claims for compensation. However, as discussed elsewhere (unfair dismissal protection), most dismissals connected with industrial action are unfair. Further, an employer that makes a deduction from an employee's pay without being entitled to do so may find that the employee resigns and claims unfair constructive dismissal. Companies are therefore strongly advised to obtain advice from their Association before deciding on an appropriate course of action.
As discussed elsewhere in this Guide (contractual issues), an employee who takes part in industrial action is likely to be in serious breach of his or her contract of employment. If an employee is in serious breach of contract, his or her employer is contractually entitled to dismiss the employee without notice or any payment in lieu of notice. However, it may nevertheless be unfair to dismiss the employee, unless the situation falls within the limited circumstances in which the employee has no unfair dismissal protection (unfair dismissal protection). Companies that are considering dismissing employees who are taking part in industrial action should therefore contact their Association for advice.
If an employee is refusing to do any work, as would be the case in a strike, his or her employer is not obliged to pay for the days or hours on which he or she does not work. However, it may be that the employee is refusing to perform only part of his or her contractual duties. In these circumstances, the employer has a choice. It can accept the work that the employee is prepared to do, and pay him or her a reduced wage or salary to reflect the fact that the employee is not carrying out his or her full duties (reduction for part-performance ). Or it can reject the employee's part performance of his or her duties and refuse to pay the employee any wages or salary at all.
If it chooses the latter approach, however, the employer must clearly reject the employee's part-performance. That will normally involve sending the employee home until he or she is prepared to work normally. In suspending the employee from work, the employer must ensure that the employee knows that he or she is not being disciplined or dismissed, and that any work that he or she does will be voluntary work for which the company will not pay. If an employer suspends an employee without pay as a disciplinary sanction it is required to follow the same minimum procedural requirements as if it were dismissing the employee ( minimum dismissal procedures ). Further, the Company should be aware that it may be viewed as locking the employee out (types of industrial action), in which case the employee's protection from unfair dismissal will be extended by the length of the lock-out (industrial action). Companies considering this course of action should contact their Association for advice.
The amount of pay that an employer can withhold if an employee is on strike or if it refuses to accept part-performance depends on how the employee's contract defines his or her pay period or rate of pay. If the strike or part-performance lasts for the whole of a pay period, such as a complete week or month, the employer can withhold all the pay due for that period. If the employee's contract specifies an hourly rate, the employer can withhold pay for the contractual hours that the employee failed to work.
The calculation becomes more complicated if the strike or part-performance does not last for a whole pay period and the employee's pay is not expressed as an hourly rate, as is the case, for example, with salaried staff paid monthly. In these cases, companies should contact their Association for advice on the appropriate deduction.
The legal rules that normally regulate deductions from wages (deductions from pay) do not apply to deductions made in respect of strikes or other industrial action. The employer should, however, ensure that the deduction is itemised on the employee's pay statement (itemised pay statement ). Time during which an employee is involved in industrial action does not count for the purposes of calculating his or her entitlement to the national minimum wage (the national minimum wage).
As explained earlier in this section (non-payment of wages or salary ) if an employee is refusing to carry out part of his or her contractual duties, the employer is entitled to refuse to accept that part-performance. If the employer chooses instead to accept the work that the employee does, it is entitled to reduce the employee's usual wages or salary to reflect the fact that the employee is not carrying out his or her full duties. It may, however, be difficult to calculate what the appropriate reduction should be, and companies considering this course of action should contact their Association for advice. The factors that are likely to be most relevant are the proportion of total working time that the employee usually spends on the duties that he or she is refusing to do and the value of those duties to the company.
The legal rules that normally regulate deductions from wages (deductions from pay) do not apply to deductions made in respect of strikes or other industrial action. The employer should, however, ensure that the deduction is itemised on the employee's pay statement (documenting pay). Time during which an employee is involved in industrial action does not count for the purposes of calculating his or her entitlement to the national minimum wage (the national minimum wage).
In theory, if an employee engages in industrial action that involves breaking his or her contract, the employer can sue the employee for compensation for the economic loss the employee's action has caused. In practice, this type of legal claim is almost unheard of, for two reasons:
- It would be very difficult to prove that the particular employee's breach of contract caused the employer's loss.
- Even if that link could be established, the employee would be unlikely to have the funds to pay the compensation awarded.