Unfair dismissal of striking workers
A synopsis of provisions giving unfair dismissal protection to employees taking part in lawful "official" strike or other industrial action.
From 24 April 2000, it will be automatically unfair to dismiss employees for the first eight weeks of their participation in official and otherwise lawfully organised "protected" industrial action. It will similarly be automatically unfair to dismiss an employee after that period in specified circumstances. These changes are given legislative form by amendments made, principally, to the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A") by s.16 and Schedule 5 of the Employment Relations Act 1999 ("the 1999 Act"), and are brought into force by the fifth Commencement Order1 to be made under that Act.
In this feature, we briefly outline the background to the new provisions before considering them in more detail.
The existing position
The general principle is that an employment tribunal has no jurisdiction to hear an unfair dismissal complaint presented by an employee who is dismissed whilst he or she is participating in "strike or other industrial action", unless one or more relevant employees who were also taking part in the action at the time of the dismissal were not themselves dismissed (by the conclusion of the first tribunal hearing (preliminary or substantive) of the complaint) or were re-engaged by the same or an associated employer within three months of their own dismissals (s.238 of the TULR(C)A - see Industrial action 2: Employment protection rights).
Further, an employee who is dismissed whilst taking part in an unofficial strike or other unofficial industrial action has no right whatsoever to complain of unfair dismissal, even in the limited and exceptional circumstances outlined above (s.237 of the TULR(C)A - see Industrial action 2: Employment protection rights). A strike or other industrial action is regarded as "unofficial" for these purposes if (any number of) union members are involved, but their union is not deemed to be responsible for authorising or endorsing the potentially unlawful acts of inducement or interference constituting the action (see below ), in accordance with the statutory formula set out in s.20 of the TULR(C)A (see Industrial action 2: Employment protection rights). This latter provision imposes responsibility on unions for the acts of, amongst others, their lay officials (whatever the powers of those officials under the union's rulebook), unless these acts are effectively "repudiated" by the national executive committee, general secretary or president of the union.
Fairness at work proposals
The Fairness at work White Paper2, published in May 1998, however, stated that: "... in relation to employees dismissed for taking part in lawfully organised official industrial action, the Government believes that the current regime is unsatisfactory and illogical." Such employees should, the Government said, "have the right to complain of unfair dismissal to a tribunal".
Following consultation on the White Paper, the Government's considered proposal was expressed thus: "It will be automatically unfair to dismiss those taking part in lawfully organised industrial action for eight weeks; thereafter dismissal will be fair if the employer has taken all reasonable procedural steps to try to resolve the dispute."3
Basic protection for eight weeks
A new s.238A of the TULR(C)A seeks, broadly speaking, to implement that proposal. It provides that an employee is automatically to be regarded as having been unfairly dismissed or unfairly selected for redundancy for the purposes of Part X of the Employment Rights Act 1996 ("the ERA"), if the reason or principal reason for his or her dismissal (or selection for redundancy) was that he or she "took protected industrial action" (see below ) and:
In these circumstances, the pre-existing general provisions of s.238 will not apply (s.238(2B)). But where an employer has taken reasonable procedural steps (see below ) and dismisses an employee outside the eight-week period during continuing official action, s.238 will operate to give tribunals jurisdiction to consider an unfair dismissal complaint in cases of selective dismissal. The Government expressed the view that this "will ensure that employers do not victimise union activists or strike leaders"4.
Similarly, s.238 will continue to apply to selective dismissals during official but unprotected industrial action - for example, where a dispute or strike is declared by the union, or is deemed by virtue of s.20 of the TULR(C)A, to be official, but the union "has not followed all the legislative requirements that give it protection"5 (see below ). In this regard, it is worth noting that industrial action is always regarded as "official" if none of those taking part are union members (see s.237(2)). It follows that the position of such employees will depend on whether the individual organisers of the action enjoy s.219 immunity in tort, and will be governed by s.238A and/or s.238 accordingly.
Unofficial action unaffected
The existence of s.238A does not in any way affect the operation of s.237 in relation to dismissal during "unofficial" industrial action (see above ).
Where a union repudiates hitherto official protected action (perhaps an unlikely scenario), the action will not be regarded as unofficial (and therefore unprotected) until the working day following the day of the repudiation (see s.238A(8)). For example, if the union repudiates the action on a Monday, industrial action taken on or after the Wednesday will be not be protected. If an employee continues to take industrial action once the action ceases to be protected, he or she loses his or her entitlement to bring an action for unfair dismissal under s.238A6. A "working day" for these purposes means any day that is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday (see s.237(5)).
Calculating the eight-week period
The eight-week period specified in s.238A seems to refer to a period of eight consecutive calendar weeks commencing with the day on which the particular employee "first took part" in the (protected) industrial action. In the Government's view, it is irrelevant whether the action thereafter is intermittent or continuous7: "Even if the action is intermittent, the period of protection from dismissal will begin with the first day of the first bout of the action. It will not be extended past the eight weeks."
Nevertheless, it is perfectly possible that different employees will first take part in, for example, a rolling programme of escalating or intermittent action or one-day strikes at different times, or, indeed, may decide to join ongoing industrial action at a later stage. It follows that the eight-week period will not be the same in all cases, and will not necessarily be coterminous with the first eight weeks of the industrial action per se.
Reasonable procedural steps
In considering whether an employer has taken reasonable procedural steps under s.238A(5) above, an employment tribunal will not be permitted to consider the merits of the underlying dispute (s.238A(7)). It must, however, have regard to "whether the employer or a union had complied with procedures established by any applicable collective or other agreement" and whether, after the start of the protected industrial action, either the employer or the union had:
Tribunal complaints and procedure
Neither the normal one-year qualifying period of continuous employment nor the upper-age limit for unfair dismissal will apply in relation to protected industrial action complaints brought under s.238A. The time limit for bringing such a complaint before a tribunal will (as with complaints under s.238) be six months beginning with the date of the complainant's dismissal, subject to the possibility of an extension of time if the tribunal is satisfied that it was not reasonably practicable to bring the complaint within that period (s.239(2) of the TULR(C)A as amended).
A tribunal will not be permitted to make a reinstatement or re-engagement order under s.113 of the ERA "until after the conclusion of protected industrial action by any employee in relation to the relevant dispute" (our emphasis). That is, the action must be over (see new s.239(4) of the TULR(C)A).
References
1 The Employment Relations Act 1999 (Commencement No. 5 and Transitional Provision) Order 2000, SI No. 875 (C.20). All of the amended provisions considered in this feature, including in particular the new s.238A of the TULR(C)A, will apply only where the employee starts to take protected industrial action on or after 24 April 2000.
2 Cm 3968.
3 DTI note, "The policy on fairness at work", December 1998.
4 Ian McCartney, SC(E) Official Report, 9.3.1999, col.326.
5 ibid, col. 327.
6 Example taken from "The unfair dismissal of employees taking industrial action: guidance for employers and employees", available on the DTI website at www.dti.gov.uk/er/s16guide.htm
7 Ian McCartney, SC(E) Official Report, 9.3.1999, col.331.
For the purposes of s.238A, an employee takes "protected industrial action" if he or she commits an act (for example, a breach of contract) which, or a series of acts each of which, he or she is induced to commit by an act which by virtue of s.219 of the TULR(C)A is not actionable in tort (s.238A(1)).
Sections 219(1) and (2) confer prima facie immunity from civil action in tort for certain acts done by a person (including a union) "in contemplation of furtherance of a trade dispute". These "immune" acts consist predominantly of inducing breach or interfering with the performance of contracts (including contracts of employment), or threats of such inducement or interference (known generically as the "economic" or "industrial" torts - see s.219(1)). Almost any call to take industrial action inevitably involves the organisers in the commission of one or more of these wrongs.
This apparent immunity is, however, retained only if:
The somewhat tortuous wording of s.238A(1) thus seeks to ensure that "protected industrial action" for present purposes covers all of those who take part in action that is lawfully organised by others, in particular by trade unions, under s.219. Mere participants in such action commit no independent tort, but at common law will invariably be in breach of their contracts of employment. That breach of contract will now be a protected act if it is induced by otherwise lawful action, and as such cannot be separately relied upon by the employer as a potentially fair reason for dismissal in these circumstances9.
8 As part of these requirements, industrial action ballot papers must already contain a statement warning employees that if they take part in a strike or other industrial action, they may be in breach of their contracts of employment (see s.229(4) of the TULR(C)A). When the provisions of Schedule 3 of the 1999 Act on industrial action ballots and notices are brought into force in due course (expected to be before this summer's parliamentary recess), the following form of words will have to be added to that statement: "However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later."
9 The Government accepted that the clause was defectively drafted when the 1999 Act was originally introduced as a Bill in the House of Commons, since it would have extended protection only to those who actually committed acts of inducement or interference (that is, the organisers of the action - see Ian McCartney, SC(E) Official Report, 9.3.99, cols. 290-291).
