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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).
Consultation launched to allow agency workers to cover for striking workers

Following the High Court decision that ruled the government’s repeal of the ban on using agency workers during strike action unlawful, resulting in the ban being reinstated, the government launched consultation to once again overturn this in November 2023.

Work notices guidance issued

In November 2023 the government published guidance for employers, trade unions and workers on issuing work notices, to be issued where minimum service requirements are in place. A Code of Practice was also laid before Parliament which sets out the reasonable steps trade unions should take to ensure their members comply with work notices and help ensure minimum service levels are met. The government response to the public consultation on the Code of Practice was also published.

Consultation on minimum service levels Code of Practice opens

The Department for Business and Trade (DBT)  launched a consultation on 25 August 2023 seeking views on a draft Code of Practice which will outline steps a trade union should take to comply with the Act. It will be open until 6 October 2023.