An individual's right to claim unfair dismissal when involved in industrial action depends on whether the action has been authorised or endorsed by a union and whether the action is 'protected' because it meets the legal requirements, including the balloting requirements (union liability for industrial action). An employee's right to claim unfair dismissal may also depend on the timing of the dismissal and the reason for the dismissal. These rules, which are set out in the Trade Union and Labour Relations (Consolidation) Act 1992, are summarised in a flow chart elsewhere in this Guide (lay off and redundancy).
In many cases, the effect of the legal rules is that it is unfair to dismiss a striking employee. Companies that are considering this course of action should therefore contact their Association for advice.
It should be noted that the usual requirement to follow a statutory minimum dismissal procedure ( minimum dismissal procedures ) applies to the dismissal of strikers only in certain very limited circumstances, described as 'selective dismissal cases' below.
An employee's right to claim unfair dismissal depends on whether the action was 'official' or 'unofficial'. If an employee is a union member, the industrial action is official in relation to that employee only if it has been authorised or endorsed by his or her union. (The way in which a union authorises or endorses industrial action is explained elsewhere (is the union legally responsible? ).) If an employee is not a union member, the action is official if it has been authorised or endorsed by a union that has at least one member taking part in the action. In the unlikely event that none of the employees taking part in the action is a union member, the action is viewed as being official.
Action may become unofficial if the union repudiates it. (The way in which action can be repudiated is also explained in this section (repudiating the action ).) The action does not become unofficial, however, until the end of the working day after the repudiation takes effect, which gives employees time to consider their position. If the union repudiated the action on a Monday, for example, an employee would lose protection from unfair dismissal only if he or she were still participating in the action on the following Wednesday.
As a general rule, an employee who is dismissed while taking part in 'unofficial' action has no right to complain of unfair dismissal, regardless of the reason for the dismissal and even if others taking part in the action were not dismissed. (It should be borne in mind, however, that most action is official.)
There are limited exceptions to this rule. These exceptions are where the reason for the employee's dismissal is related to his or her right to:
In these circumstances, it is automatically unfair to dismiss the employee, even if he or she is taking part in unofficial action, and regardless of his or her age or length of service.
If action is official and protected, then it is automatically unfair to dismiss an employee if the reason for the dismissal is the fact that he or she is taking part in the action and the dismissal occurs in the twelve weeks after the employee first participates in the action. (The meaning of 'official' action is explained elsewhere in this section (official or unofficial? ).) This principle applies regardless of the employee's age or length of service. It is also automatically unfair to dismiss an employee for redundancy in the first twelve weeks of official, protected action if the employee was selected for redundancy because he or she was taking part in the action. If the employer conducts a lock-out (types of industrial action) in the 12-week period, then protection is extended by the length of the lock-out.
In two sets of circumstances it is also automatically unfair to dismiss an employee for taking part in the action even after the initial twelve-week period is over. One is where the employee stopped taking part in the action within the first twelve weeks. The other is where the employee is still taking part in the action after the first twelve weeks but the employer has not taken reasonable procedural steps to resolve the dispute that led to the action.
In deciding whether the employer has taken reasonable steps, an employment tribunal will take into account whether the employer or the union has followed any agreed dispute-resolution procedures, pursued a negotiated resolution to the dispute, or unreasonably refused conciliation or mediation. If either side agreed to conciliation or mediation, then the tribunal will also take into account whether they co-operated in setting up meetings, sent an appropriate person to the meetings, answered reasonable questions put to them at meetings, and fulfilled any commitments to take action that they gave during the process. It is important to note that it is the way in which the employer and the union conducted themselves during the dispute that is relevant here, not the merits of the dispute itself.
Some categories of employees are not covered by the rules mentioned above. These include:
- employees who are dismissed because they are taking part in protected official action, but their dismissal occurs more than twelve weeks after they began to participate, they have not stopped participating in those first twelve weeks and their employer has taken reasonable procedural steps to resolve the dispute;
- employees who are dismissed during the twelve weeks after first taking part in protected official action but who are not dismissed for taking part in the action; and
- employees who are dismissed while taking part in official action that is not protected (because, for example, it is not covered by a ballot).
An employee in one of these situations has no right to complain of unfair dismissal if the following two conditions are met:
- all those taking part in the action at the establishment where the employee worked were dismissed; and
- none was offered re-engagement within three months of the employee having been dismissed.
If the employer has selectively dismissed or re-employed, then the employee will be entitled to claim unfair dismissal, provided he or she meets the usual eligibility requirements, including at least one year's service. If the employer dismissed the employee for an automatically unfair reason, such as support for the union's claim for recognition under the statutory recognition procedure (statutory procedure for recognition), then the dismissal will be automatically unfair.
If the employer dismissed the employee for a potentially fair reason, such as conduct or redundancy, then the fairness of the dismissal will depend on two issues. The first is whether the employer has met the minimum procedural requirements that an employer must follow when it is contemplating dismissing an employee, as laid down in the Employment Act 2002 ( minimum dismissal procedures ). In broad summary, these require the employer to put the reason for contemplating dismissal in writing to the employee and the basis for it, hold a meeting to discuss it at which the employee has the right to be accompanied ( the right to be accompanied ) and allow the employee the right to appeal. The second issue is whether the employer acted reasonably in all the circumstances, including whether it followed a fair procedure before deciding to dismiss. If, for example, the employer dismissed the employee for misconduct in taking part in the action but did not follow its usual disciplinary procedure, the dismissal may well be unfair. (Unfair dismissal is discussed elsewhere in this Guide (unfair dismissal ).)
There are limited exceptions to the rule that unfair dismissal protection depends on selective dismissal or re-engagement. A dismissal will be automatically unfair if the reason for the employee's dismissal related to his or her right to:
This is so regardless of the employee's age or length of service, and even if everyone else who participated in the action was dismissed and none was offered re-engagement.
