Planes, trains and postal workers – What to do when they threaten to go on strike?

At the beginning of June, the National Union of Rail, Maritime and Transport Workers (“RMT”) announced that over 50,000 railway workers would be walking out on strike on the 21st, 23rd and 25th of June, in what would be the biggest rail strike in 30 years. The strike was organised on the back of negotiations between the RMT and the train operating companies over multiyear pay freezes, poor working conditions and plans to cut jobs, pay and pensions. Despite leaving millions of people with massive delays to their commute or without any means to travel at all, the negotiations ultimately failed and the RMT are set to strike again on the 27th of July, with a further train diver strike on the 30th of July. 

The summer of discontent 

Although this year is set to be a brighter one than the last few, which have largely been affected by the pandemic, it is still being labelled as the summer of discontent, a title to reflect the escalating cost of living, surging weather temperatures and, you may have guessed it, strikes across multiple industries. 

In the wake of the railways strikes, other industries have similarly followed suit and pursued industrial action. Passengers have narrowly avoided a strike that threatened to bring Heathrow to a standstill, as airline workers have accepted an offer of an 8% pay rise, avoiding the mass walk out of check-in staff. However, we may still be set to see what could be the biggest industrial action taken by workers yet this summer, as 115,000 Royal Mail workers have voted to go on strike on a date yet to be set.

Is industrial action lawful?

If the law is read literally, going on strike will always be unlawful. The employees involved will be in breach of their contract of employment as striking involves the unilateral withdrawal of the employees’ labour. The trade union calling the strike will also commit the tort of inducing a breach of contract. People often speak about the right to strike but this does not refer to any specific unequivocal right clearly enshrined in the law. Instead, it broadly refers to the fact that the UK is a signatory to various international instruments, such as the European Convention on Human Rights, which protects freedom of association and the right of employees to join trade unions and participate in industrial action such as striking. 

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) is a complex piece of legislation which lays down strict conditions for trade unions considering industrial action that have to be met in order to protect employees going on strike from dismissal. Therefore when people talk about a “lawful strike” what they are usually describing is industrial action that has been organised in accordance with TULRCA, and that the relevant union has complied with all of the procedural balloting and notification rules.  

What are an employer’s rights during a strike?

In most cases the action that employers can take against employees on strike is limited given the complexity of the law governing industrial action and the various protections afforded to workers under it. As employees on strike will technically be in breach of contract, employers are entitled to withhold their pay. The right for an employer to withhold pay for the strike period is generally upheld and uncontested by tribunals if challenged. The employee also cannot bring a tribunal claim for unlawful deduction of wages under Section 13 of the Employment Rights Act 1996, if the industrial action is the reason for the deduction.

However, employers should give careful thought to any plans to dismiss employees for striking as is it can potentially open them to a liability for unfair dismissal. Whether an employee has a valid claim for unfair dismissal will largely depend on whether the industrial action was official or unofficial. The action is official if:

  • The employee(s) in question are members of a trade union and the action is authorised or endorsed by that union.
  • The employee(s) are not a member of a trade union, but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed. 
  • If none of the employees taking part are members of a union, the action still will not be treated as unofficial.

It is only if the action does not fall within the above categories that it will be deemed unofficial and employers will have immunity from unfair dismissal claims. Nevertheless, the last category in particular demonstrates that the protection offered to employees on strike is vast, therefore if industrial action is threatening to affect your business this summer, get in touch with a member of Moore Barlow Employment Team and we can advise you on how to consult with your employees before and through a strike, to help negotiated peaceful resolution.

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