Overview

Industrial action raises complicated issues and legal advice should always be taken.

Useful information is available from the TUC, individual unions, GOV.UK and the Code of Practice: access and unfair practices during recognition and derecognition ballots. Future developments, at the end of this Q&A, summarises the changes.

For information on redundancy consultations, see our Redundancy collective consultation Q&As.

Current legislation focuses on statutory recognition for trade unions. There have been many academic articles written about the complexities of UK union recognition. In practice, the line between recognition and non-recognition can often blur.

A trade union is recognised when it is:

  • independent, and
  • recognised by an employer, or two or more associated employers, for the purpose of collective bargaining. Collective bargaining has a very specific definition (see What is ‘collective bargaining’ and are ‘collective agreements’ incorporated into employees' contracts?).

Trade union recognition can be either be by voluntary agreement between the parties, or an application can be made for statutory recognition.

Enforced statutory recognition occurs where an independent trade union (or two or more trade unions acting together) makes a request for recognition.

If the employer, together with any associated employer, employs fewer than 21 workers on the day that the request is received the request is invalid as far as the legislation is concerned. It is therefore voluntary for employers with fewer than 21 workers to recognise a union.

In the UK, employees and employers make their own individual employment agreements with each other and collective employment ‘rights’ are not legally enforceable unless a collective agreement is specifically incorporated into an employee’s contract. This is in contrast to the law in many other EU member states. The legal right to conduct collective bargaining is the essential basic feature of a recognised trade union.

As a general rule, collective bargaining involves negotiations on pay, hours and holidays (the core topics). Parties often voluntarily reach agreement on other issues.

There must be clear evidence to show both parties had mutually recognised one another for the purposes of collective bargaining, and evidence of actual negotiations on collective agreements. Discussions with a union about various matters over a long period of time doesn’t make those talks legally recognised.

The CAC is an independent tribunal with statutory powers. It provides voluntary arbitration in industrial disputes and has statutory responsibility to adjudicate disputes regarding recognition and applications for the disclosure of information for collective bargaining. It also deals with applications and complaints under the Information and Consultation Regulations 2004 and disputes over the establishment and operation of European Works Councils.

The Certification Officer works with the Department for Business, Energy & Industrial Strategy and is responsible for statutory functions relating to trade unions and employers’ associations.

Following the declaration of statutory trade union recognition, the parties have 30 working days to agree the way they’ll conduct collective bargaining. If they fail to reach agreement either party may apply to the CAC for assistance.

If the parties cannot agree, the CAC will impose a method of collective bargaining, which will take effect as a legally enforceable contract made between the union and the employer.

The union may be derecognised only where:

  1. The employer no longer employs 21 or more workers. If the employer’s application to have the union derecognised is accepted by the CAC the collective bargaining arrangements will cease to have effect.
  2. The union no longer enjoys the necessary degree of support from workers in the bargaining unit. Here the employers/workers can apply to the CAC for a derecognition ballot. The process is the same as that for recognition.

An application for derecognition can’t be made until at least three years have elapsed since the declaration of recognition.

An employee or worker dismissed on grounds relating to the recognition or derecognition of a union will be able to bring a claim for unfair dismissal, regardless of their length of service.

They have three months from the date on which they were subjected to a detriment to bring a claim. The employment tribunal may make a declaration that the employer acted unlawfully and award compensation.

The Acas Code of practice on time off for trade union duties and activities focuses on protection for representatives of independent trade unions in connection with collective bargaining, including duties concerning collective redundancies and the transfer of undertakings.

No. The Employment Relations Act 2004 introduced measures that:

  • establish rights for workers not to be offered inducements relating to trade union membership and collective bargaining, and
  • extend their rights not to suffer detrimental action in circumstances relating to union membership.

Unions cannot generally refuse to admit members unless they belong to certain organisations, membership of which would be contrary to the rules of the union. For example, a union may be able to refuse membership to members of an extremist political party.

As is often the case under UK law there are different definitions in different pieces of legislation. A strike is defined as both:

  • “any concerted stoppage of work” (Trade Union and Labour Relations (Consolidation) Act 1992), and
  • “the cessation of work by a body of employed persons acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of employed persons to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any employed person or body of employed persons, or to aid other employees in compelling their employer or any employed person or body of employed persons, to accept or not to accept terms or conditions of or affecting employment” (Employment Rights Act 1996).

For there to be an authorised or official strike the union must organise a legal ballot. Employers must be given at least two weeks’ notice of the ballot, and be informed of the result as soon as possible.

The law concerning balloting has recently changed and is complex. The Code of Practice: Industrial action ballots and notice to employers has been updated accordingly.

Industrial action is also used as a generic term, covering a broad range of actions by employees to put pressure on an employer. Some examples are strikes, lock-outs, over-time bans, boycotts and working to rule.

  • There is no general right to strike as such in UK law, but the Human Rights Act 1998 gives a legal right of 'freedom of assembly and association'.
  • Time spent on strike is not included in calculating the length of an individual's period of continuous employment.
  • An employee who is dismissed while on an unofficial strike is usually unable to make an unfair dismissal claim, but employers should take legal advice.

The three month time-limit for presenting an unfair dismissal claim doubles to six months if the employee was on strike when they were dismissed.

Any form of industrial action, including a strike, which is not authorised or endorsed by a trade union, will generally be ‘unofficial.’

Where industrial action is unofficial, participating employees do not have statutory protection from unfair dismissal.

Some professions are banned from taking industrial action and for them striking will always be illegal. For example, industrial action by prison officers is prohibited by the Criminal Justice and Public Order Act 1994.

A 'trade dispute' is one that relates wholly or mainly to:

  • Terms and conditions of employment, and the physical work environment.
  • Engagement or non-engagement, termination or suspension of employment, or the duties of employment between workers.
  • Matters of discipline, membership or non-membership of a trade union.
  • Facilities for trade union officials.
  • Machinery for negotiations or consultation and other procedures relating to the above matters.

If the action is unofficial the employer may be able to:

  • obtain an injunction, or
  • sue the union for damages, though the amount the trade union can be ordered to pay is capped by reference to the number of members it has nationwide.

However, the legislation concerning industrial action is full of complexities and employers may find many ways to challenge the legitimacy of strike action.

Unofficial industrial action

If an employee is taking part in unofficial industrial action at the time of their dismissal, they will not have the right to claim unfair dismissal.

To dismiss unofficial strikers without a dismissal procedure:

  • the industrial action must not be authorised or endorsed by the relevant union
  • the employee needs to be shown to have been participating in the action – rather than, for example, being absent from work due to illness – and to have been dismissed while participating, both of which are important matters of fact.

Any employee who participates in unofficial industrial action will also commit a breach of their contract of employment. The main remedies would be:

  • Suing the employee for damages (that is the loss suffered as a result of the industrial action. This is usually not a commercial option because it is hard to prove and the employees have no money, even if an employer is in principle willing to sue employees).
  • Non-payment of the employees.
  • If the circumstances warrant it, dismissal.

However, great care should be taken (the action may turn out to be official or the employee may be able to show they were dismissed for one of the 'automatically unfair' reasons).

There is some helpful case law in this area.

Official industrial action

Statutory protection is provided to employees taking part in official action. Employees are allowed to strike for a protected period of 12 weeks.

It is automatically unfair to dismiss an employee for taking part in protected industrial action where dismissal occurs:

  • within the first 12 weeks of the industrial action (the protected period), or
  • after the protected period if the employee has stopped participating in the protected action before the end of the protected period, or
  • after the protected period if the employee is still participating in industrial action, but the employer has not taken procedural steps to resolve the dispute, for example the compliance with any collective agreement for dispute resolution, any other attempt to negotiate or resolve the dispute with the use of mediation services.

However, the employees can be dismissed fairly if the:

  • official action continues beyond the 12-week protected period, and
  • employer has tried to take reasonable steps to resolve the dispute

All those participating must be dismissed and remain so for a three-month period. The dismissed employees will not be entitled to receive any notice pay, redundancy pay or other termination payment. Problems can arise if there is a fresh ballot on essentially the same issues and the employer alleges that the 12-week period has been exceeded.

Ultimately a court has to decide if the dispute is sufficiently the same and if the protected period starts running again.

Reasonable steps

An employer seeking to dismiss after the protected period must take such procedural steps as are reasonable to resolve the dispute. After the protected period of industrial action has begun, the employer must:

  • offer or agree to start or restart negotiations
  • not unreasonably refuse a request to make use of conciliation or mediation services.

Where the parties have agreed to use the services of the mediator or conciliator, section 28 of the Employment Relations Act 2004 introduces matters which the tribunal is to have particular regard to when assessing whether an employer or the union has taken reasonable procedural steps to resolve the dispute.

The short answer to this question is yes, but the legality of it depends on the work the employer wants the temporary workers to do and whether the employer:

  • engages the workers directly (which is permissible), or
  • uses an employment business to supply the workers (which is not allowed).

Employers must not use an employment business to supply the latter's own employees to do work normally performed by the strikers.

The basic rule is that employees are not performing under the terms of their contracts while they’re on strike, so the time is treated as authorised unpaid leave.

Employers may close for the day, but if they stay open as usual they should clearly inform all employees of this in case there are employees who decide they do not wish to participate in the strike. If employers do close the workplace for one day, they should pay employees who are not striking, unless there is a clearly worded contractual lay-off clause.

Refusing to employ or blacklisting union members gives rise to legal claims for defamation, conspiracy and breach of data protection laws.

It is unlawful for organisations to:

  • refuse employment to, or to blacklist, union members
  • refuse employment or sack individuals as a result of appearing on a blacklist
  • refuse to provide a service on the basis of an individual appearing on a blacklist

Individuals or unions can pursue compensation or solicit action against those who compile, distribute or use blacklists.

Blacklisting has been a particular problem in the construction industry, prompting the creation of the Construction Workers Compensation Scheme (which closed in June 2016) and the issuance of government guidance.

An employer may consider applying for an interim injunction from the High Court to prevent the industrial action from taking place or continuing. The court has to decide:

  • if there is a serious issue to be tried and a reasonable claim for the relief sought (the balance of convenience), and
  • if damages would provide an adequate remedy, given that the level of damages that may be awarded is limited.

This is a complex area of law and specific legal advice should always be sought.

An employer could consider suing its employees for damages as an alternative to dismissal (or indeed potentially in conjunction with dismissal). Where production stops, it may well be possible to quantify lost profits for the days on which the action is taken. The problem, however, is that employees will clearly have limited resources and the industrial relations consequences need to be considered carefully. Clearly, where an extended strike takes place, an employer will not pay the employees. This will be irrespective of whether they are dismissed or sued for damages.

Secondary action consists of calling or threatening a strike or other industrial action by workers of an employer who is not a party to a dispute. This is usually unlawful and unions that organise such action may lose immunity from legal proceedings. 'Secondary action' is defined by the Trade Union and Labour Relations Consolidation Act 1992 as:

  • where a person induces another to break a contract of employment or interfere or induce another to interfere with its performance, or
  • threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance, and
  • the employer under the contract of employment is not the party to the dispute.

The only form of secondary action that is lawful is picketing, but there are strict rules concerning the numbers and use of pickets.

The illegality of secondary action can be a complex issue.

It is lawful for a person to picket near their place of work:

  • in contemplation or furtherance of a trade dispute, or
  • for the purposes of peacefully obtaining or communicating information, or
  • to persuade anyone to abstain from working.

Usually, trying to get another person to break their contract or interfering with the performance of a contract is a civil wrong (or “tort”). However, lawful picketing provides protection from liability for such industrial torts.

It is not lawful to picket on any part of the premises that are private property – that would be trespass. If attendance outside the place of work is for any other purpose, such as obstructing the highway, then this is unlawful.

There is no statutory restriction on the number of pickets that may attend at a place of work, but to retain statutory immunity from the industrial torts the action must be peaceful. The Department for Business, Energy & Industrial Strategy’s Code of Practice; picketing recommends no more than six pickets at any entrance or exit from the workplace.

In the case of partial performance such as a work to rule, employees will not be paid remuneration under their contract of employment unless they are able and willing to perform their contractual duties in full. This can cause difficulties when trying to decide if work to rule amounts to a refusal to fulfil contractual duties or not.

The courts, however, have taken the view that there is an implied term to serve the employer faithfully which extends to an obligation not to disrupt the employer's business wilfully or to operate to the letter of the contract in such a way as to undermine the commercial objectives of the contract. In general, since a work to rule will clearly be intended to disrupt the business, it is likely to amount to a breach of contract by the employee and therefore a refusal to comply with the employee's duties in full.

Trade Union Act 2016: Balloting

The majority of provisions of the Trade Union Act 2019 came into force on 1 March 2017. These included provisions concerning the majorities required in balloting.

Provisions in the Act are being phased in over a transitional period. Accordingly, future developments will include:

  • An independent review of electronic balloting.
  • Future restriction of facility time (paid time off give to trade union representatives to perform their union duties). The Act enables possible future regulations restricting facility time for particular sectors.
  • New rules concerning ‘check-off’ (deducting trade union membership subscriptions from salary) affecting those in the public sector and some private sector employers providing public services).
  • Changes so that new members of a union do not automatically contribute to a union’s political fund, unless they opt-in. (A year’s transitional period for this provision began on 1 March 2017.)

Brexit

For information on what Brexit may mean for employment law, read the blog by our Public Policy Advisor (Employer Relations) and visit our resource hub.

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