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   Employers’ guide: strikes and industrial action

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Employers’ guide: strikes and industrial action

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   Head of Employment

   Although strikes by employees are thankfully not a regular occurrence,
   statistics show an increase in strike action in the private
   sector relating to national and international issues, so it’s important
   to know what your rights are as an employer and what you can and can’t
   do if your staff decide to take industrial action. The right to strike
   in each country is impacted by regional and international law.

   Our expert employment law solicitors tell you what you need to know
   when employees are going on strike and if you can dismiss members of
   staff taking industrial action.

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    1. What is industrial action?
    2. When is industrial action lawful?
    3. Haven’t the rules on strikes been tightened up?
    4. Can you dismiss employees for going on strike?
    5. Do you have to pay employees who are on strike?
    6. What can employers do to stop a strike?
    7. How can employers avoid industrial action?

What is industrial action?

   ‘Industrial action’ (going on strike) tends to occur when employees
   disagree with a business decision and want their employer to reverse
   it. For example, if you’re planning to reduce the number of working
   hours, your employees may go on strike to put pressure on you to change
   or alter these plans.

   Going on strike is the most common form of industrial action, but for
   the purposes of the law on industrial action, it includes ‘action short
   of a strike’ – overtime bans, call-out bans, work-to-rules, sit-ins and
   work-ins.

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       ballot of union members. A majority of the members involved must
       support industrial action through the ballot. There have been some
       changes to the rules on this – see 'Haven’t the rules on strikes
       been tightened up recently?' below.
    3. Notification – as an employer, you need to be given:
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    4. Not for a prohibited reason – industrial action can’t be taken for
       any of the following:
         1. Secondary action (supporting another strike
            which doesn’t involve that employee)
         2. Unlawful picketing
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   If these conditions aren’t met, industrial action isn’t lawful and
   it won’t be automatically unfair to dismiss your employees for going on
   strike, even if the action is official. See 'Can you dismiss employees
   for going on strike?' below.

Haven’t the rules on strikes been tightened up?

   From March 2017, changes were made by the Trade Union Act 2016 to the
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       there would have to be another ballot.
     * Ballot papers – they must set out the nature of the issues in
       dispute, the types of action ‘short of a strike’ (if that’s what’s
       proposed) and an ‘indication’ of time periods for action (but this
       doesn’t mean specific dates).
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   Another significant change may be in the offing – the introduction of
   electronic voting. Trade unions had argued that one of the reasons
   for apparently low turnouts in strike ballots was the lack of e-voting
   and the Government has been considering the issue following the
   recommendations made in the independent review by Sir Ken Knight in
   2017.

Can you dismiss employees for going on strike?

   If employees go on strike, they’re breaching their employment contract.
   However, this doesn’t mean that you can dismiss them without the
   dismissal being classed as unfair. Your right to dismiss striking
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   unfair dismissal, see our advice post What is a ‘fair’ dismissal?)

Do you have to pay employees who are on strike?

   When employees go on strike, you don’t need to pay them for the days
   they’re not at work. The question of how much to deduct can be
   surprisingly problematic. If the employees are paid hourly, it’s easy,
   but if they are salaried, pay normally accrues from day to day based on
   calendar (not working) days, unless you specify something else about
   strike pay in the employment contract.

   If the employees are acting ‘short of a strike’ (see 'What is
   industrial action?' above), then you can’t deduct pay. You will
   either have to pay the employees in full or demand that they comply
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   agency staff you’re currently employing are unaffected).

What can employers do to stop a strike?

   As well as withholding pay, you can refuse to accept partial
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   You will need to act quickly if you’re applying for an injunction – the
   union only needs to give you 14 days’ notice of a strike.

   If the strike has already gone ahead, you may be able to claim damages
   from the employees and union if it wasn’t lawful. Amounts are based on
   the union membership and subject to a statutory maximum (currently