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Industrial action

The law relating to industrial action is complicated and many aspects of the law are unclear, either because of conflicting court decisions or because of the absence of judicial interpretation of the key legislation.
Although few employers, particularly in the private sector, are directly affected by industrial action, those that are can suffer substantial detriment including adverse impact to reputation, productivity, sales and morale.
Speed is of the essence in dealing with industrial disputes. First, because they have an immediate impact on the employer's undertaking. Second, because any legal action is likely to take the form of seeking injunctions and the courts will not grant injunctions unless they are sought speedily. Before pursuing a legal response to industrial action, employers should seek specific advice from a suitably specialised lawyer reflecting the complexities involved.

Key points

  • industrial action is generally unlawful and exposes the organising trade union to claims for compensation and injunctions, unless it has a defence
  • this defence is available if the action is taken in 'contemplation or furtherance of a trade dispute' and a number of specific statutory requirements are complied with, including conducting a ballot before any industrial action, serving notice on the employer and a prohibition on secondary action and unlawful picketing
  • if the industrial action is lawful, and is endorsed or organised by the trade union, any dismissal for taking part is automatically unfair for at least 12 weeks from its commencement
  • employees dismissed during, and because of taking part in, unofficial industrial action (not authorised by the union) cannot pursue an unfair dismissal claim
  • it is lawful for employers to dock pay from employees participating in industrial action in certain circumstances, but not all, and caution should be exercised over the hiring of agency workers to backfill striking employees as it is prohibited by statute (although the government has promised to repeal this ban).

Recent developments

Proposed changes to laws on industrial action

Minimum workforce requirements during strikes

In June 2022, the government announced that it intends to change the law on strikes to require a minimum number of workers to remain in place during strike action. Grant Shapps, Transport Secretary, explained that this would be to protect freight shipments of essentials, such as fuel and food.

This commitment was previously made in the 2019 Conservative manifesto. At this stage, there is no indication of when this will be introduced, or indeed if it ever will be.  

Overturning legislation to allow employers to use agency workers to cover for striking workers

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibits the provision of a temporary worker to perform the duties normally performed by a striking worker. The government proposed to overturn this, with legislation expected to be laid before parliament in the week commencing 20 June 2022, which is expected to come into effect in mid-July.

The proposed changes will allow employers to bring in outside staff, should they choose to do so. This would in turn make it harder for unions to use strikes as a way to force employers’ hands in negotiations.