Can an employee be dismissed for taking lawful industrial action?
A person taking lawful industrial action is protected from dismissal for at least 12 weeks, as he or she is deemed to be acting in furtherance of a trade dispute. Dismissal within the first 12 weeks, for taking part in the action, will be automatically unfair. It will also be automatically unfair if the employee is dismissed after 12 weeks but had stopped taking part in the action before the end of the 12-week period.
In practice it can be difficult to dismiss striking employees even after the 12-week protected period. Dismissal will be automatically unfair if the employer has not taken reasonable procedural steps to resolve the dispute, such as agreeing to start or restart negotiations or making use of Acas conciliation services. Even where the employer has taken these steps, employees taking official industrial action can claim unfair dismissal unless all employees taking part are dismissed and none are offered re-engagement, so the employer is more exposed to claims if it dismisses only some employees.
If it can be shown that the protection does not apply by virtue of the employee's personal conduct, the employer may dismiss that employee on those grounds and rely on his or her conduct as the reason for the dismissal.