The rules: Industrial action

Legal Eagle / 15 August 2011

If you're involved in strike action, it pays to know your rights. Here are the basics

UNISON members are reluctant to take industrial action. It is always the last resort, bringing with it, to some degree, loss of earnings and job instability. Yet, the number of disputes affecting UNISON members has been rising over the last few years; about 60 ballots on industrial action are now taking place every year with half of them leading to action of some kind. The overwhelming majority of ballots are at branch level, with some involving only a handful of members. The most frequent cause is an attempt by employers to worsen terms and conditions of employment. At the same time there have been major strikes, at both national and regional level. Extracted from the UNISON industrial action handbook, here are the basics.

Know your rights
There is no legal right to strike in the UK, but there is limited protection for individuals, from unfair dismissal and the right to associate, in the European Convention on Human Rights. Strikes and other forms of industrial action invariably involve a breach of contract. Therefore it may be lawful for an employer to dismiss employees for it and also to refuse pay for a service not provided

An employer can legally dismiss those who take part in unlawful action. In the case of unofficial action, the employer can dismiss and later pick and choose who it re-employs – with no protection from victimisation for those it chooses not to re-employ

UNISON

Legal protection
Employers’ rights to dismiss those taking part in lawful action are restricted. There is protection when the dismissal is within 12 weeks of the action starting; is after 12 weeks but the employee ceased the action within 12 weeks; or the employer failed to take reasonable steps to resolve the dispute

Illegal action
An employer can legally dismiss those who take part in unlawful action. In the case of unofficial action, the employer can dismiss and later pick and choose who it re-employs – with no protection from victimisation for those it chooses not to re-employ

Loss of pay
An employer is entitled to withhold payment for each day of strike action from those deemed to be on strike. UNISON argues that this should be 1/360th of annual salary

Going back
A  return-to-work agreement should be negotiated between the employees and employer to ensure normal circumstances can be resumed post-strike, with no recriminations on either side

Source: UNISON. You can download the UNISON handbook for more information

For more on industrial action, pick up the September/October 2011 edition of Edge, out in early September