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In the context of continued striking in various sectors, including education and healthcare, we have prepared this article as a helpful refresher on some of the key aspects of the law concerning striking staff. The law consists of a combination of case law and statute, with the key statutory provisions being contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992).
Industrial action generally consists of either:
We should add, there isn’t a ‘statutory definition’ as such of what amounts to industrial action, so in theory, any concerted and collective action taken is capable of amounting to industrial action.
A strike or other industrial action is classed as ‘official’ in relation to a particular employee where either:
Insofar as the action does not fall into one of these three categories, it will be ‘unofficial’ and it is considered as ‘protected’ when it has been organised by a union.
There are two forms of protection that are generally associated with industrial action. In this regard, it is first worth noting that it will normally be a breach of contract to strike, and that the above three categories are relevant to what level of protection an employee will have.
When an employee participates in industrial action which is classed as official and protected, any dismissal for doing so will be automatically unfair (if it occurs within 12 weeks of the employee starting to participate in the action).
An employee has very limited protection if dismissed for taking part in unofficial industrial action. The employee would normally need to show that there was another potentially unfair reason for dismissal or some form of discriminatory treatment.
An employee has slightly greater protection if they are participating in official but unprotected industrial action (the classic example is if the action continues for longer than the 12-week protected period).
Contrary to widely held beliefs however, detrimental action short of dismissal by an employer against an employee for taking part in or organising industrial action, is technically lawful. This position was determined in the 2022 case of Mercer -v- Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening)  EWCA Civ 379.
Mrs Mercer had been suspended and disciplined (but not dismissed) after helping to organise, and then taking part in, a series of strikes. She subsequently issued employment tribunal proceedings, arguing that she had been subjected to a detriment for participating in trade union activities under section 146, because the phrase “activities of an independent trade union” under section 146 of TULRCA 1992 should include participating in industrial action. Initially, the Employment Tribunal held that Mrs Mercer was not protected under s.146. This decision was then overturned by the Employment Appeal Tribunal which held that claimants could seek protection for detriment short of dismissal under s. 146 of TULRCA even though that section does not explicitly apply to participating in industrial action (effectively they considered that a reference to industrial action should be read into the meaning of this clause).
The employer didn’t appeal the EAT decision, but the Secretary of State did, and the result was that the Court of Appeal then upheld the original decision by the Tribunal. The reasoning was that it was “impermissible” for the court to imply wording into s146 that specifically covered industrial action.
This is a semantically difficult distinction to understand, as it effectively means that s146 provides for protection for taking part in the activities of a trade union, but that this protection doesn’t cover any detriments that relate to a fundamental aspect of trade unions – that of taking industrial action. This distinction relates to the way that TULCRA is structured, in that s146 does not actually refer to industrial action and with industrial action and trade union activities dealt with separately in the course of the act.
In summary, employees do have limited protection from dismissal for participating in or organising industrial action. However, currently, employees have no protection under TULRCA 1992 for any detriment short of dismissal for organising or participating in industrial action. This gap in protection has been recognised by the Court of Appeal and cited as a potential breach of Article 11 of the European Convention on Human Rights. Employers can therefore take action short of dismissal in these circumstances but should consider that excessive action may create risks in terms of employees claiming constructive dismissal; discrimination; whistleblowing; or generally just damaging goodwill and industrial relations.#
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