Industrial action 2: Employment protection rights

Tribunal jurisdiction is, however, restored if:

The definition of "relevant employees" differs, depending on whether the complainant's dismissal occurs in the course of an employer lock-out or during strike or other industrial action.

Health and safety and maternity exceptions

Section 238 does not operate to preclude an unfair dismissal complaint if it is shown that the reason, or principal reason, for dismissal (or selection for redundancy) was one of the new health and safety grounds contained in s.57A of the EP(C)A, or was by reason of pregnancy or childbirth within the meaning of s.60 of that Act - s.238(2A) of the TULR(C)A. Employees require no qualifying period of employment in such cases, and a dismissal on either of the specified grounds is automatically unfair. The individual employee is nevertheless left with the unenviable task of establishing that, in the context of a blanket dismissal, he or she was dismissed for one of the specified reasons. On the other hand, if the stoppage or other "appropriate" action (for example, a refusal to work on particular machinery) itself occurs because employees reasonably believe that there is a serious and imminent danger to their health and safety, it is arguable that it cannot in any case amount to strike or other industrial action under s.238.

Key questions

Any analysis of s.238 raises the following key questions:

Each of these issues is examined in turn below.

Definitions of industrial action

There has historically been no legislative definition of a "strike", "other industrial action", or "lock-out" for the specific purposes of s.238. In attempting to determine what constitutes a strike or a lock-out, the courts and tribunals have on occasion sought the aid of the definitions contained in para. 24 of Schedule 13 of the EP(C)A, while making the point that these definitions are only indicative and, strictly speaking, apply solely for other statutory purposes (see Express & Star Ltd v Bunday and others). In relation to strikes, reference has also been made to the broad definitions proposed in Tramp Shipping Corporation v Greenwich Marine Inc (see part 1 of this series). It would now appear, however, that the term "strike" in s.238 is to be defined simply as "a concerted stoppage of work", whatever its motivation or reason (s.246 of the TULR(C)A). There continues to be no statutory definition at all of "other industrial action".

This lack of clear definition has led the higher courts to characterise the question of what amounts to strike, other industrial action or lock-out, together with the further question of who was "taking part" in strike or other industrial action, as essentially questions of fact for industrial tribunals. This in turn has tended to lead to a degree of inconsistency in the cases, as tribunals may reach diametrically opposed but apparently equally permissible conclusions on the same facts.

Breach of contract unnecessary

As we saw in part 1 of this series, industrial action short of a strike can take a wide variety of forms. It is, however, clear that under s.238 "other industrial action" is not limited to action which amounts to a breach of employment contracts.

For example, in Faust and others v Power Packing Casemakers Ltd, the Court of Appeal held that the words "other industrial action" could cover a refusal to work overtime, whether or not in breach of contract, if the refusal occurred at a time when the employees generally were in dispute with their employer and the overtime ban was being used as a bargaining weapon. The Court agreed that if an employee refused to do something which he or she was not contractually obliged to do because of a private commitment (eg to visit a sick friend) or personal preference (eg to go to a football match), the individual would not be taking part in industrial action. But if the employee refused because he or she, and others who also refused, hoped to extract concessions from their employer, "that continued application of industrial pressure is industrial action in the common sense of the words". Indeed, it appears that a concerted refusal to work regular voluntary or reasonable overtime on a single occasion, as a limited protest against management's attitude towards the workforce, can amount to industrial action (Glenrose (Fish Merchants) Ltd v Chapman and others).

By contrast, in Rasool v Hepworth Pipe Co Ltd (No.2), the EAT upheld a tribunal's finding that an unauthorised workplace meeting held by employees to consider impending pay negotiations was not "other industrial action". Even though it was found that the meeting amounted to a repudiatory breach of contract, and resulted in a degree of disruption to the manufacturing process, the EAT accepted the tribunal's view that it was more properly regarded as a trade union activity.

Threats to take action

A threat to take strike or other industrial action will not in itself normally amount to industrial action, however imminent the action threatened.

In Midland Plastics v Till and others, following inconclusive negotiations over wages, the employees' works committee sent a letter to the employer outlining their minimum demands, and ending: "If these demands are not met in full it is our intention to take industrial action as from 11 am Tuesday, 5 May." The letter was received by management at about 9.30 am on that date, and several employees were dismissed before the 11 am deadline. Upholding a tribunal's decision that these employees were not taking part in industrial action at the time of their dismissals, the EAT said that a substantial factor in industrial relations negotiations "is a display of power by one side in response to which the other side either does or does not yield ... The actual taking of industrial action is the last stage and is quite distinct from the stage at which the threat of it is being used as a bargaining weapon." The EAT added that the fact that a threat of action might be in breach of a collectively agreed disputes procedure did not make any difference.

This decision is, in our view, more reliable and realistic than that reached more recently in Lewis and Britton v E Mason & Sons. There, the EAT held that it was not perverse for a tribunal to conclude that employees were taking part in industrial action, where there had been "a definite threat" of action at a time when there was no realistic prospect of further negotiations, and when work for the following day had already been allocated by the employer.

Joining existing action

Notwithstanding the Lewis and Britton case, threatening to take industrial action can generally be distinguished from indicating an intention to join existing action on the next working day or shift. It is clear that the latter may amount to industrial action within s.238. An employee does not therefore have to be under an immediate contractual obligation to work in order to "take part" in industrial action.

In Winnett v Seamarks Brothers Ltd, the EAT gave the following example: "If ... in a particular case all the employees of a company which is engaged on a three-shift system of work meet and decide that as from the time of their meeting they will all stop work, we do not consider that the only ones who are taking part in strike or other industrial action are those whose shift is due to work at the moment of the decision. It seems to us that those employees who are due to work on the next two following shifts are taking part in [the action] when they intimate that their labour will be withdrawn at a time when the current shift actually stops work. They do not only begin to take part [in the action] when the time of their shift comes and they do not actually work."

The situation may be more complicated where the form of action decided upon does not require any individual employee to take immediate action. In Naylor v (1) Orton & Smith (2) M D Tweddell Engineering Ltd, the EAT reluctantly upheld a tribunal's view that attendance at a meeting at which it was decided to impose an immediate overtime ban did not amount to taking part in industrial action at that point in time. This begs the question of when the action would have started: the first time any of the employees refused to do overtime; or would each employee take part only when he or she individually refused to do overtime?

Single-person action?

It seems clear that the term "taking part in strike or other industrial action" covers essentially collective or concerted activities. In principle, the provisions should therefore have no application to an individual acting alone. This approach is reflected in Bowater Containers Ltd v Blake, where the EAT said that the words "taking part" suggested "some participation with other people or some concerted action", and that the provisions relating to "relevant employees" indicated that the action contemplated was action by at least two people. Moreover, the EAT felt that the ordinary meaning of the words "industrial action" did not include action by one person alone. It therefore rejected a submission that an individual employee's refusal to do particular work unless his employer sorted out a query relating to a disputed bonus payment could amount to other industrial action.

Some doubt has been cast on these assumptions by the decision in Lewis and Britton (see above). In that case, the EAT upheld a tribunal's decision that an employee who refused to undertake a long journey in a vehicle without a heater unless his employer paid him a £5 overnight supplement was dismissed while taking part in industrial action. The tribunal had concluded that the essential characteristic of strike or other industrial action was "conduct designed to coerce the employer to improve existing terms and conditions in some way", irrespective of the number of employees involved.

The decision in Lewis and Britton implies that much individual misconduct should in future be characterised as "strike or other industrial action". In our opinion, the approach taken in the Bowater case is to be preferred - there must be some form of collective action in which to participate or, at the very least, a collective dimension to an individual's conduct (for example, in the form of compliance with a union instruction to take action - see Drew v St Edmundsbury Borough Council).

Industrial action vs union activities

It is generally accepted that a distinction is to be drawn between industrial action under s.238, and taking part in the activities of an independent trade union under ss.152 and 153 of the TULR(C)A. An employee cannot, therefore, normally be considered simultaneously under both sets of provisions (Drew v St Edmundsbury Borough Council).

For example, in the Drew case, the EAT upheld a tribunal's conclusion that if an employee had been making repeated complaints about health and safety matters as part of a unionorganised "go-slow", this would have amounted to industrial action and could not have been at the same time a union activity. But, as we have seen, the EAT in the Rasool (No.2) decision accepted that an unauthorised workplace meeting was more properly regarded as a trade union activity (although the absence of the employer's express or implied consent would mean that it could not have taken place at an "appropriate time" under s.152).

Employer provocation or coercion

The fact that industrial action is provoked by, or is a response to, unreasonable conduct, coercion or a serious (that is, repudiatory) breach of contract by the employer, will not prevent s.238 from applying (see Wilkins and others v Cantrell & Cochrane).

As we saw in part 1 of this series (at p.6), courts and tribunals generally refuse to accept that employees who go on strike in the face of breaches of contract by the employer wish to terminate their contracts of employment. However, if notice of indefinite strike action were to be expressly framed by employees (or their representatives) as an acceptance of the employer's breach, it is arguable that there would have been mass constructive dismissals before any industrial action commenced, and s.238 would be rendered irrelevant. This would accord with the normal analysis that a threat of industrial action does not in itself amount to industrial action.

Lock-outs

In practical terms, a "lock-out" may be regarded as the employer's equivalent of strike action. As well as taking note of para. 24 of Schedule 13 of the EP(C)A, courts and tribunals have referred to the dictionary definition: "an act of locking-out a body of operatives; ie a refusal on the part of an employer, or employers acting in concert, to furnish work to their operatives except on conditions to be accepted by the latter collectively".

In Express & Star Ltd v Bunday and others, Lord Justice May said that this definition was "at least a reliable indication" of what constitutes a lock-out in modern industrial relations. In the same case, Lord Justice Croom-Johnston observed that the common elements of a lock-out included the employer's "refusal to furnish work, in one form or another, and an element of compulsion". And Lord Justice Glidewell thought that the ordinary meaning of the word "lock-out" comprehended "not merely the act of the employer in refusing to allow [its] employees to work, but the reason why [it] so refuses."

By parity of reasoning with the case law on "other industrial action", a lock-out does not necessarily involve a breach of the contract of employment by the employer. Whether or not there is such a breach will, however, be "critical" in some cases and a "material consideration" in a substantial number of others (Express & Star). It thus seems unlikely that an employer who lawfully refuses to allow employees to work unless they adhere to their existing terms and conditions of employment, or unless they accept new working practices which fall within those terms and conditions, will be found to have been conducting a lock-out.

For example, in the Express & Star case, following inconclusive negotiations, the employer decided to implement the practice of "single-keying" in its newspaper production process. The employees' union instructed its members not to accept any ultimatum to work other than in the previously established fashion. However, those employees who refused to give the employer an undertaking that they were prepared to work under their contracts of employment "without restriction" were immediately suspended without pay, and over 50 of them were subsequently dismissed. An industrial tribunal rejected the employees' contention that they had been dismissed in the course of a lock-out, and held that they had in fact been taking part in industrial action.

Upholding this decision, the Court of Appeal said that the tribunal had been entitled to consider whether the adoption of "single-keying" involved a change in the employees' contractual terms of conditions of employment, and to conclude that the employer had put no pressure on the workforce to do anything which it was not contractually bound to do.

As with strike or other industrial action, there is a distinction between an actual lock-out and the threat of a lock-out. Even if an employer has made it clear that it is moving towards the unilateral imposition of new contracts of employment, or terms, conditions or practices which fall outside of existing contractual obligations, together with a threat that employees will not be allowed to work unless they accept those terms, this threat will not in itself amount to a lock-out (Manifold Industries Ltd v Sims and others (No.2)).

Who was "taking part" in industrial action?

The issue of who was "taking part" in strike or other industrial action is crucial to the operation of s.238. It determines whether that provision applies to an employee who complains of unfair dismissal in the context of industrial action, and also defines those who are to be regarded as "relevant employees" for such purposes. It is once again a question of fact for industrial tribunals, and is largely determined objectively by reference to an employees' actions or omissions, and not by reference to the subjective reasons or motives behind them.

The "objective" approach

This approach is illustrated in Coates and Venables v Modern Methods and Materials Ltd. In that case, the majority of the Court of Appeal upheld an industrial tribunal's decision that an employee who refused to cross a picket line because of the fear of verbal abuse was taking part in industrial action, and was therefore a "relevant employee". This was despite the fact that the employee in question shared no common purpose with the strikers and did not support the strike.

Lord Justice Stephenson nevertheless concluded that participation in a strike "must be judged by what an employee does and not by what [she] thinks or why [she] does it. If [she] stops work when her workmates come out on strike and does not do or say anything to make plain [her] disagreement, or which could amount to a refusal to join them, [she] takes part in their strike ... In the field of industrial action those who are not openly against it are presumably for it."

Lord Justice Kerr went even further. He felt that it "would not be practicable to differentiate between those who chose to remain away from work by reference to their reasons for doing so." The question of whether an employee was taking part in a strike that was already in progress could in practice only be answered on the basis of his or her action by either staying out or going in to work. Kerr LJ accepted that the position would be different if an employee stayed away from work for reasons which had nothing to do with the strike, such as illness or holiday. However, if the employee's absence was due to the existence of the strike in some respect, because he or she chose not to go to work during the strike, the employee should be regarded as taking part in the strike.

Employees lawfully absent may take part

Notwithstanding Kerr LJ's observations in Coates and Venables, an employee who is on holiday or off work due to sickness may take part in industrial action. For example, if an employee participates in action before his or her legitimate or lawful absence, he or she may well be regarded as continuing to participate while away from work.

In Williams v Western Mail & Echo Ltd, the EAT confirmed that this principle applies both to strike action and action short of a strike. It observed that "taking part in industrial action is not limited to the moments in time when a particular act is done." Once employees had stated that they would apply sanctions - in this case, a work-to-rule - and had begun to do so, "they may be regarded as applying the sanctions either until they are discontinued or until they indicate or state an intention of stopping them." If an employee would have continued to apply the sanctions he or she had already begun to operate, and was only prevented from doing so because he or she was sick, he or she was still taking part in the action.

Similarly, an employee may take part in industrial action despite being off sick, or otherwise lawfully absent, when the action started. In Bolton Roadways Ltd v Edwards, the EAT commented that if such an employee "associated himself with the strike, attended at the picket line or took part in the other activities of the strikers with a view to furthering their aims, he would, in our view, be capable of being held to be taking part in the strike."

The degree of contact or involvement required for participation is, however, unclear. For example, in Hindle Gears Ltd v McGinty, the EAT rejected a tribunal's finding that an employee who was off sick for the duration of a strike, and whose contact with the strikers was limited to spending time talking to pickets when he visited the factory to hand in his medical certificates, could be taking part in the action. The EAT found it "impossible to visualise any reasonable tribunal regarding such fleeting encounters between a sick employee and his striking colleagues as participation in the strike action." More broadly, it observed that the circumstances "would have to be very exceptional indeed before it could accurately be said of a servant lawfully absolved under his contract of employment on the grounds of ill health from supplying any labour at all ... that he had been involved in the process of withdrawing labour."

In Rogers v Chloride Systems Ltd, the EAT agreed that general expressions of support by a sick employee for colleagues involved in strike or other industrial action would not, without more, amount to taking part in that action. It went on to say, however, that if the employee were to answer "no" if asked directly (by her employer) whether she would have returned to work normally on a specific date if she had not been sick, or if she would have been prepared to undertake to work normally as soon as she was able to do so, that could be sufficient to constitute "taking part" within s.238, even though it would not in ordinary parlance be an "active participation".

Employer's belief or knowledge irrelevant

A further consequence of the "objective" approach to the question of participation, means that an employer's belief or actual state of knowledge as to whether or not employees were taking part in strike or other industrial action is also generally irrelevant. It follows that if an employee's actions and omissions are such as to justify a tribunal in drawing an inference that he or she was participating in industrial action, that inference cannot be invalidated merely because his or her employer was unaware of those actions or omissions.

This was confirmed in Manifold Industries Ltd v Sims and others (No.1) where the EAT said that the question of whether employees were taking part in industrial action had to be determined "as an objective fact and not by reference to what the company knew or whether the company acted properly in trying to collect its information on the subject." It therefore concluded that an industrial tribunal had been wrong to find that certain employees were not participating in a concerted refusal to cooperate with a work study process, solely on the basis that interviews conducted by managers were incapable of enabling the employer to come to any informed decision as to the employees' present or future intentions in relation to the industrial action.

Date of dismissal

An employee must be taking part in strike or other industrial action, or be directly interested in an employer lock-out, "at the date" of his or her dismissal in order for s.238 to apply. This means that employers cannot seek to rely on the provision if an employee is dismissed at any time either before a strike, industrial action (or a lock-out) has commenced or after it has finished. In addition, an employee can only be a "relevant employee" in relation to strike or other industrial action if he or she was taking part in the action at the date of the complainant's dismissal - see further below.

In Heath and Hammersly v J F Longman (Meat Salesman) Ltd, the National Industrial Relations Court (NIRC) said that the word "date" in s.238 should be interpreted to mean "at the time" of dismissal. It followed that if, on any given date, the employer had been told that a strike or other industrial action was over, it would not be free during the rest of that calendar day to dismiss employees who had taken part in the action. The NIRC consequently held that a tribunal had jurisdiction to hear unfair dismissal complaints by employees who were dismissed after one of their number had phoned their employer to inform it that they were willing to return to work.

The potential difficulties in applying this provision are demonstrated in Hindle Gears Ltd v McGinty. In that case, an employer posted notices of dismissal to all of its employees who it believed to be still participating in strike action. However, early in the morning of the following day two of the strikers - whose dismissal notices were still in the post - decided to give up the action and report for work. After giving the employer assurances that they had not received their dismissal letters, they were accepted back for duty. An industrial tribunal held that they had been dismissed, along with the rest of the strikers (including the complainants), on the date the dismissal notices were sent. They were therefore relevant employees who had been participating in the strike action, and who had been selectively re-engaged.

Allowing the employer's appeal, the EAT held that a dismissal was not effective until the decision to dismiss had been communicated "in terms which either bring it expressly to the attention of the employee or give him at least a reasonable opportunity of learning of it". The two employees in question had consequently never been dismissed, and had ceased to take part in the strike by the time that other employees received their dismissal notices.

Note: For the purposes of s.238, if the employee's contract of employment is terminated by notice, the date of dismissal is the date on which the employer's notice was given (s.238(5)(a)). In any other case, it is the effective date of termination, as defined in s.55(4) of the EP(C)A (ss.238(5)(b) and 298 of the TULR(C)A). For the former provision to operate, the employee must be given clear notice of dismissal. It is not sufficient, for example, for the employer to warn employees that if they fail to report for work on a certain day their employment will be treated as terminated forthwith. This would be a warning of dismissal without notice and not a notice of dismissal (Bolton Roadways Ltd v Edwards).

Discriminatory dismissal or re-engagement

An industrial tribunal may determine an unfair dismissal complaint involving a dismissal during a strike, lock-out or other industrial action, only if the complainant employee can show:

As noted above, the definition of relevant employees differs significantly depending upon whether a dismissal occurs whilst taking strike or other industrial action, or during an employer lock-out.

Relevant employees - industrial action

In relation to a strike or other industrial action, "relevant employees" are those employees at the establishment of the employer at or from which the complainant works who at the date of his or her dismissal were taking part in the action (s.238(3)(b)).

Relevant employees - lock-outs

In relation to a lock-out, "relevant employees" are those employees who were "directly interested" in the dispute in contemplation or furtherance of which the lock-out occurred (s.238(3)(a)).

The concept of direct interest is clearly broader than the idea of "taking part". It can cover not only those actually locked out by the employer, but may also include a wider category of employees who were not locked out. There are no express words in the definition which limit the employees who are to be treated as directly interested to those who remained locked out throughout a dispute. And "relevant employees" for this purpose are not limited to those who were locked out at the time of a complainant's dismissal, or to employees employed at the complainant employee's establishment. The test of direct interest is "a retrospective one and what has to be looked at is the date on which the lock-out occurred" (Campey & Sons Ltd v Bellwood and others).

In order to determine who was "directly interested" in the dispute which led to a lock-out, tribunals must ask themselves two questions:

In the Fisher case, on 7 February 1978 the employer sent a letter to each of the 34 employees working on its main container line, giving them notice that if they refused to give an undertaking to work at "normal incentive pace under the existing bonus scheme" they would be suspended from the start of their next shift. On the following day (8 February), no production occurred, and the employees held a number of meetings. Subsequent to those meetings, all but seven of the employees signed the undertaking. The seven refusees remained suspended, and were dismissed on 14 February, following their continued refusal to sign any undertaking. An industrial tribunal held that unfair dismissal complaints by six of these employees were barred because the employer had been conducting a lock-out, and all the relevant employees within the meaning of s.238(3)(a) had been dismissed.

Allowing the employees' appeals, however, the EAT concluded that the dispute in this case was about the obligation to sign the letter of 7 February, and whether the terms of that letter reflected the employees' contractual obligations. The lock-out occurred when the employees were told that they would not be allowed to work, and indeed did not work, on 8 February. At that stage, said the EAT, none of the 34 employees had signed the letter. There was then a dispute between all of those employees and the company. It followed that all 34 of them had at some time been "directly interested" in the dispute in respect of which the particular lock-out had occurred.

The concept of direct interest in a dispute is also to be found in social security law (see note below). In that context, the House of Lords has held that an employee can have a direct interest in a dispute where the outcome of the dispute (for example, in terms of improved pay and/or conditions) will be applied to him or her "automatically", even though he or she was not "participating" in the dispute, or was not a member of a union which was participating in the dispute. An automatic "across-the-board" application of the outcome may come about as a result of either a collective agreement (whether or not legally binding), or "established industrial custom and practice at the place (or possibly places) of work concerned" (Presho v Department of Health and Social Security).

The EAT in Campey v Bellwood was referred to the Presho decision, but refused to speculate as to whether their Lordships' approach would be relevant to the identification of "relevant employees" in relation to a lock-out under s.238.

Note on social security rights: There are significant social security implications for employees who are directly interested in a stoppage of work due to a trade dispute at their place of employment, or who withdraw their labour in furtherance of a trade dispute. (These terms are defined in the Social Security Contributions and Benefits Act 1992.) All such employees will be disqualified from receiving unemployment benefit and income support, and will generally be unable to get statutory sick pay, unless their period of entitlement began before the stoppage of work and has not yet ended. For further information on these and related matters, see the Rights guide to non-means tested benefits (18th edition) and National welfare benefits handbook (25th edition), both published by the Child Poverty Action Group.

Timing of dismissals

The material time for testing whether or not "relevant employees" have been dismissed by the employer is at the conclusion of either the substantive tribunal hearing of an unfair dismissal complaint, or any prior hearing on jurisdiction. An employer may thus defeat an unfair dismissal complaint provided that all relevant employees have been dismissed by that time.

This was confirmed by the Court of Appeal in P&O European Ferries (Dover) Ltd v Byrne. In that case, the complainant argued that at least one relevant employee who had been taking part in strike action had not been dismissed. Both the industrial tribunal and the EAT refused the employer's application for further particulars which would have enabled it to identify the alleged relevant employee. The Court of Appeal, however, held that this was an improper exercise of the tribunal's discretion. The employer was entitled to know what case it had to meet, even though giving those particulars would identify one or more of the complainant's witnesses.

Turning to the proper construction of s.238(2)(a), the Court noted that an industrial tribunal has no jurisdiction to "determine" an unfair dismissal complaint "unless it is shown" that a relevant employee has not been dismissed. The words "unless it is shown", said Lord Justice May, "necessarily direct one's attention to the conclusion of the relevant hearing before the industrial tribunal and in my opinion require one to conclude that the material point in time is when the tribunal either determines the substantive hearing which involves determining the jurisdiction point, or alternatively determines the jurisdiction point on a preliminary hearing ..." The Court recognised that if the alleged relevant employee was called to give evidence, he or she would probably immediately be dismissed in order to prevent the complainant employee's case from proceeding further. This fact could not, however, affect "the clear and literal meaning of the subsection".

The term "relevant employee" assumes employment under a contract of employment, and those who have voluntarily resigned from employment, retired or died prior to the end of the relevant hearing must be disregarded (that is, they cannot be treated as relevant employees - Manifold Industries Ltd v Sims and others (No.1)).

Offers of re-engagement

An offer of re-engagement under s.238(2)(b) means an offer by the original employer (or an associated or successor employer) to re-engage the employee in the job which he or she held immediately before the date of dismissal, or in a different job which would be reasonably suitable in that employee's case (s.238(4) TULR(C)A).

Nevertheless, there must be a discrete offer, whether express or implied. A general advertising campaign offering the chance to apply for employment to anyone who might respond, does not therefore amount to an offer of employment to any individual (Crossville Wales Ltd v Tracey and others). This may be distinguished from an invitation to particular individuals to apply for re-engagement, together with an undertaking that they will be re-engaged if they apply (Williams v National Theatre Board Ltd). The latter will amount to an offer of re-engagement for present purposes.

The EAT observed that the employee had disclosed the fact that he had previously worked for the company through the Hammersmith office, although he had not revealed the exact dates of that employment or the circumstances of his earlier dismissal. It nevertheless concluded that the company had constructive knowledge of all those matters. The employer was the same in relation to both jobs, and it had records relating to its various offices. In order to obtain the relevant information, the Luton office had needed only to telephone the Hammersmith office and ask what it knew about the employee in question.

If, however, the employee secures re-employment as the result of a fraudulent application, any ensuing contract of employment will be void and he or she will not be treated as a relevant employee who has been offered re-engagement. In Bigham, it was found that the employee had acted neither fraudulently nor unscrupulously.

This definition allows some variation in the terms and conditions upon which an offer is made to individuals, and between the terms offered to different employees In Williams v National Theatre Board Ltd, the Court of Appeal upheld an industrial tribunal's decision that an offer which was made subject to the condition that certain employees would be on a second disciplinary warning on their return to work, was a valid offer of re-engagement. The Court was unanimous that the employees had been offered their jobs back: "they were offered re-engagement in the same rank with the same work at the same pay in the same place without effect on continuity of employment." The condition as to a second warning did not "touch the capacity" on which the they were offered employment. Furthermore, it was irrelevant that this condition was not applied to all of those employees who received offers.

On the other hand, the Court gave some examples of terms which might negate an offer of re-engagement, including a "large reduction in pay" or an offer of significantly reduced hours. But Lord Denning indicated that there may be "some re-arrangement of hours or duties" which would not invalidate an offer, while Fox LJ reserved his position on whether any reduction in pay would be permissible.

Extended time limit

An unfair dismissal complaint to which s.238 applies must normally be made before the end of the period of six months beginning with the date of the complainant's dismissal (s.239(2) of the TULR(C)A). (Note that the "date of dismissal" is as defined in s.238(5) - see p.7). This general extension of the normal three-month time limit would seem to be the result of an oversight in the drafting of the 1992 Consolidation Act. The extended limitation period used to apply only to cases involving allegedly discriminatory re-engagement.

"... we find it impossible to accept that Parliament, in conferring the right to reduce compensation, can ever have intended an industrial tribunal to form a view as to the merits or demerits of any particular industrial action"

(per Mr Justice Browne-Wilkinson in Courtaulds Northern Spinning Ltd v Moosa, 9.11.83)

"In our judgment the wording is clear, the intent is clear. This appeal must be allowed and these cases remitted to the same industrial tribunal for assessment of compensation with the guidance from this judgment that circumstances surrounding the industrial action are relevant to its consideration."

(per Mr Justice Wood in TNT Express (UK) Ltd v Downes and others, 21.7.93)

Fairness of dismissal

If an employee can show that his or her employer has discriminated between those involved in a strike, other industrial action or lock-out, an unfair dismissal complaint will then be determined largely according to normal principles. The employee will be required to prove that he or she has been dismissed under s.55(2) of the EP(C)A; the employer will have to demonstrate that there was a potentially fair reason for dismissal within the meaning of s.57(1) and (2) of that Act; and the fairness of the dismissal (or a discriminatory failure to re-engage) will be determined according to the standard of "reasonableness" contained in s.57(3).

The following points should, however, be noted:

Pending any consideration of these issues by the Court of Appeal, it seems that the decisions in TNT and Crossville (No.2) are likely to be followed in preference to that given in Courtaulds Northern Spinning Ltd v Moosa. There, the EAT had said that reductions in compensation based on the fact of an employee's participation in industrial action were precluded, because the general parliamentary intention behind s.238 and its predecessors was "to prevent industrial tribunals from going into the merits or demerits of collective industrial disputes".

Dismissal during "unofficial" industrial action

In its 1989 Green Paper Unofficial action and the law², the Government claimed that the provisions of s.238 of the TULR(C)A limited employers' ability to take effective action against the organisers of persistent unofficial industrial action. It therefore proposed to legislate to allow employers carte blanche to dismiss employees involved in such action, by completely removing the possibility of unfair dismissal proceedings.

Accordingly, s.237 of the Act now provides that an employee has no right to complain of unfair dismissal if at the time of dismissal he or she was taking part in an unofficial strike or other unofficial industrial action. By contrast with s.238, there is no restriction on the employer "picking and choosing" between the employees taking part.

Note: Section 237 contains a number of elements which have already been discussed, including what constitutes "strike" or "other industrial action", and the question of who was "taking part" in such action. As with s.238, it does not apply if it is shown that the reason, or principal reason, for dismissal (or selection for redundancy) was one of the new health and safety or maternity and childbirth grounds (see s.237(1A) and p.2, above).

Time of dismissal

For s.237 to operate, employees must be taking part in unofficial action "at the time of dismissal". By virtue of s.237(5), "the time of dismissal" means: where the employees' contract of employment is terminated by notice, when the notice is given; where the employee's contract is terminated without notice, when the termination takes effect; and where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when the term expires. This section focuses explicitly on whether the employee is participating in action at the moment of dismissal, and thus gives statutory recognition to the pragmatic interpretation adopted in respect of the "date of dismissal" under s.238 (see p.8, above).

Unofficial action defined

Strike or other industrial action is deemed to be "unofficial" in relation to an employee unless:

In other words, action is unofficial if an individual's own union is not legally responsible for the action, as defined below, or, in the case of a non-union member, there are other employees taking part in the action who are union members, but none of their unions are legally responsible. In addition, an employee who was a member of a trade union when industrial action began is treated as continuing to be a member for the purpose of determining whether that action is unofficial in relation to him or her or another employee, even though he or she may in fact have ceased to be a member (s.237(6)).

It is perfectly possible under these provisions to have a situation in which some employees will be deemed to be taking unofficial action, while others will not. For example, if an employee's own union does not authorise or endorse action, he or she will be taking unofficial action, even though there may be others taking part who belong to different unions which have authorised or endorsed the action. Neither the latter group, nor any non-union members who take part, will be taking unofficial action. Those two groups will consequently be subject to the legal regime prohibiting selective dismissal or re-engagement contained in s.238.

Authorisation or endorsement

The question of whether industrial action is authorised or endorsed by a union (and therefore whether a union is legally responsible for the action) for the purpose of s.237 is determined according to the statutory formula contained in ss.20(2) and 21 of the TULR(C)A (see box on p.11), and by reference to the facts at the time of an employee's dismissal (s.237(4)). If a union repudiates action in accordance with s.21 of the TULR(C)A, the action will not be treated as unofficial "before the end of the next working day after the day on which the repudiation takes place" (s.237(4)). A "working day" means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday (s.237(5)).

These provisions have been described as providing a "window of opportunity", within which it may be possible to resolve disputes and/or ensure a return to normal working. They do not, however, resolve the fundamental uncertainties created by s.237 as a whole. As we noted above, different employees participating in the same action may be governed by different legal regimes, and, as a result of the complex provisions on repudiation, the legal status of industrial action may change more than once.

For example, because the status of action is to be determined at the time of any individual's dismissal, the facts at one point may indicate that there has been a valid repudiation and that the action is therefore unofficial in respect of employees dismissed at that time. There may subsequently be action inconsistent with the repudiation by national union officers, and it would appear that the action then ceases to be unofficial in respect of employees dismissed after that time.

A "catch-22" situation?

The real purpose of s.237 is arguably to ensure that unions either organise "lawful" industrial action with the support of a ballot, or accept civil legal responsibility for potentially unlawful unofficial "wildcat" action. If they then wish to avoid liability for such action, they are left in the invidious position of having to repudiate the action, and leave their individual members exposed to selective dismissal. In addition, any industrial action taken in support of those dismissed whilst taking unofficial action is automatically outside of any immunity from civil legal action which might otherwise be conferred on the organisers of industrial action (see s.223 of the TULR(C)A).

It is to these "collective" issues that we will turn in the next part of this series.

Industrial action and employment protection rights - main points to note

Definitions of "strike" and "lock-out"

"Strike" means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms and conditions of or affecting employment.

"Lock-out" means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment.

Paragraph 24, Schedule 13 of the EP(C)A. These definitions apply only for the purposes of calculating continuity of employment, for certain redundancy payment purposes, and in relation to notice rights.

Effect of industrial action on redundancy payments

Misconduct - the general position

An employee generally loses his or her right to a redundancy payment by reason of dismissal where the employer, being entitled to terminate the contract of employment without notice by reason of the employee's conduct, terminates it either:

Section 82(2) therefore deprives an employee who is dismissed on the grounds of redundancy in one of the specified ways of his or her redundancy payment, in circumstances where he or she could have been summarily dismissed for conduct which amounted to a repudiatory breach of contract. It also applies where the employee is given notice of dismissal for redundancy, and is subsequently dismissed with short or no notice for misconduct. The term "conduct" includes strike action (see Simmons v Hoover Ltd), and the provision also covers action short of a strike which amounts to a repudiatory breach of contract.

Strike action during "obligatory period"³

An employee will, however, retain his or her right to a redundancy payment if, having been given notice of dismissal on grounds of redundancy, he or she is dismissed (in the manner specified in s.82(2)) because he or she has taken part in a "strike" during the obligatory period of that notice (s.92(1)(a) and 92(2)(a)). The "obligatory period" of notice is the minimum period of notice required to be given to the employee (under either s.49 of the EP(C)A or the employee's contract, whichever is the longer - s.85(5)). There must accordingly be two "dismissals" - an earlier one for redundancy, followed by dismissal for participating in a strike - in order for s.92 to bite (Simmons v Hoover).

Note: Section 92 also operates to preserve the redundancy payments rights of employees who are dismissed (in accordance with s.82(2)) for going on strike after they have given their employer notice of an intention to claim a redundancy payment by reason of being laid off work or put on short time.

Other misconduct during "obligatory period"³

If an employee is dismissed (in accordance with s.82(2)) for misconduct other than a strike (including industrial action short of a strike) during the obligatory period of notice, an industrial tribunal may award the whole or part of any redundancy payment if it considers it "just and equitable" to do so (s.92(3)).

Notice of extension following strike action³

Where an employee goes on strike after being given notice of dismissal for redundancy, an employer may serve a notice requiring the employee to extend his or her contract of employment by an additional period comprising as many available days as the number of working days lost by the strike (s.110 of the EP(C)A). The notice must state that, unless the employee complies with the request, or the employer is satisfied that the employee cannot comply because of sickness or injury or that in the circumstances it is reasonable for the employee not to comply, the employer will contest any redundancy payments claim.

If the employee does comply, he or she is entitled to a full redundancy payment. Where there is a failure to comply, and the employer has not agreed to make a payment, a tribunal can award the whole or part of the redundancy payment if the reason for the employee's failure was that he or she unable to comply, or that it was reasonable for him or her not to comply.

Resignation during "lock-out"³

If an employee terminates his or her contract of employment without notice in response to an employer lock-out which is in repudiatory breach of contract, there will be no "constructive dismissal" for redundancy payment purposes - s.92(4) EP(C)A.

Miscellaneous employment protection provisions

Continuity of employment⁴

Effect of strike: If an employee takes part in a strike in any week, or any part of a week, that week does not count towards his or her period of continuous employment for statutory employment protection purposes under the EP(C)A (para. 15(1), Schedule 13 of the EP(C)A).

A strike does not, however, operate to break continuity (para. 15(2)), and this principle applies even if the employee has been dismissed during the strike and is re-engaged after it has finished (see Hanson v Fashion Industries (Hartlepool) Ltd). An employee may thus aggregate his or her periods of qualifying employment before and after the strike for the purposes of establishing continuity.

Effect of lock-out: If an employee is subject to a lock-out in a week, or any part of a week, during which his or her contract of employment continues in existence, then continuity is preserved and the week counts towards continuity in the normal way.

If, however, there is no contract in existence during the whole of that week, continuity is not broken but the week does not count towards establishing continuity (para. 15(4)). Periods of employment before and after the lock-out can in this case be aggregated in the same way as with a strike.

Guarantee payments

An employee who has been continuously employed for not less than one month can claim a guarantee payment of up to £14.10 for each day when he or she is not provided with work by his or her employer for a maximum of five days in any three-month period (s.12 of the EP(C)A). An employee is not, however, entitled to a guarantee payment in respect of a workless day if the failure to provide him or her with work occurs in consequence of a strike, lock-out or other industrial action involving any employee of his employer or an associated employer (s.13(3) of the EP(C)A). The terms "strike", "lock-out" or "other industrial action" are not defined for this purpose, and are not therefore limited to matters relating to employment terms.

Notice rights

Under s.50 and Schedule 3 of the EP(C)A, an employee may have a statutory right to be paid during his or her statutory minimum notice period (as defined in s.49(1) and (2) of the EP(C)A. This right will apply (irrespective of the employee's right to payment under the contract of employment) if the employee is ready and willing to work but no work is provided by the employer, the employee is off work due to sickness or injury, or the employee is on holiday in accordance with his or her contract.

However, no payment will be due under these provisions if the employee gives notice but participates in a "strike" (as defined in para.24 of Schedule 13) before the notice expires (para.6, Schedule 3). If the employer gives notice, but then terminates the contract in response to a repudiatory breach of contract by the employee (including most strike action or action short of a strike) during the notice period, no payment is due in respect of the balance of the original statutory minimum notice period (para. 7(2)). Even if the employer does not terminate the contract in the face of a strike, the employee will not be ready and willing to work and no payment will be due for the duration of the action.

When is action authorised or endorsed by a trade union?

Under s.20 of the TULR(C)A, industrial action is authorised or endorsed by a union (that is, a union is deemed to be legally responsible for the action) if it was "done, authorised or endorsed" by:

Repudiation

A union will not, however, be taken to have authorised or endorsed the actions of officials or committees falling within the last category (and will thus cease to be legally responsible for the purposes of s.237) if those actions are "repudiated" by the principal executive committee, president or general secretary of the union "as soon as is reasonably practicable after it comes to the knowledge of any of them" (s.21(1)).

Any repudiation must be communicated in writing to the relevant committee or official "without delay" (s.21(2)). The union must also "do its best" to give individual written notice of the fact and date of the repudiation to every member who it has reason to believe is taking part or might otherwise take part in the action, together with the employer of every such member. The notice given to members must contain the following warning:

"Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal"

(s.21(3))

A repudiation will, however, be ineffective if the executive committee, president or general secretary subsequently behaves in "a manner which is inconsistent with the purported repudiation" (s.21(5)).

The above provisions, which were enacted primarily for the purpose of determining union responsibility for certain civil legal (ie tortious) wrongs, will be examined in more detail in part 3 of this series.