Today is the biggest day of strike action in over 10 years.  Hundreds of thousands of teachers are taking industrial action over pay resulting in widespread school closures. 

As well as state school teachers, university lecturers, train and bus drivers and civil servants are also on strike today.  Nurses will strike on 6 and 7 February along with ambulance workers on 6, 10, 17, 20 and 22 February.  Firefighters have also announced the first nationwide strike since 2003.  Today’s strikes are causing chaos for school children and commuters.

The teachers are members of the National Education Union (NEU) who are demanding above inflation pay rises.  The Education Secretary, Gillian Keegan, comments that schools already have an extra £2bn from the Autumn spending review and that this can be used to fund pay increases. 

Other workers striking are also calling for improved pay increases.

There have been reports that many schools and head teachers were being left in the dark about who would be joining today’s strikes, adding to the disruption caused.  Gillian Keegan has expressed surprise that  the teachers apparently do not have to tell their head teachers or the schools that they intend to join in the industrial action.

Below we look at some common questions about industrial action:-

What is industrial action?

Industrial action is when workers refuse to do something as a bargaining weapon when trying to secure agreement with their employer eg over a pay increase or improved working conditions. It includes stopping work/striking, a “go-slow” where an employee deliberately performs their duties slowly/inefficiently, work- to -rule where an employee performs their minimum contractual duties but no more and overtime bans.  Picketing often accompanies strikes and is subject to specific rules.

Can any worker strike?

Members of the armed forces and the Police Force have no right to strike. 

Prison officers are subject to limitations on strike action.

Under TULR(C)A 1992, s.240 it is a criminal offence to wilfully or maliciously breach a contract of service knowing or having reasonable cause to believe that it would probably result in danger to human life, cause serious bodily injury or expose valuable property to destruction or serious harm.  Hospital workers and workers in the fire service are examples of occupations where striking is not illegal but where the consequences of striking may give rise to criminal liability.

When striking breaches an employment contract or causes loss to an employer are the employees or Trade Unions liable?

Many of the forthcoming strikes are in the public sector. Where strikes take place in the private sector this may result in loss and/or disruption to commercial contracts for which an employer may face penalties.

Industrial action is generally unlawful at common law.  The striking workers will usually be in breach of their contracts of employment and the trade union responsible for organising the strikes will usually be committing a tort. These torts usually arise from interference or attempted interference with contracts, for example, between an employer and its workforce or between an employer and its customers. However, if certain requirements are met, protection or statutory immunity from liability, for these tortious acts will be obtained.

When will a Trade Union have statutory immunity from liability?

Where a strike is done in contemplation or furtherance of a trade dispute the statutory immunity provisions will apply.

What does statutory immunity mean?

It means that an act eg to induce a person to breach a contract or to interfere with the performance of a contract or a threat to do so will not be actionable if done in contemplation or furtherance of a trade dispute.  Other conditions must also be met to obtain statutory immunity.

What type of trade dispute does statutory immunity apply to?

This means a dispute between an employer and their workers about, for example, terms and conditions of employment, engagement or non-engagement, termination or suspension of employment or the duties of employment of one or more workers, allocation of work, facilities for trade union officials, a worker’s membership or non-membership of a trade union, disciplinary matters and the methods of consultation or negotiation for any of the above or matters of trade union recognition.

Who must the trade dispute be with?

To acquire statutory immunity from liability for industrial action, the trade dispute must be between workers and their employer.   The statutory immunity will not apply if the workers or union organise a strike to support a dispute involving another employer  and its workforce.

In order for statutory immunity to apply not all workers must be involved in the dispute.  However, all the workers involved in the industrial action must be employed by the employer who is a party to the dispute.

What is Protected Industrial Action?

Protected industrial action is action that has been organised in compliance with strict statutory requirements ie it must be done in contemplation or furtherance of a trade dispute and have satisfied the statutory requirements as to balloting and employer notification.  Statutory balloting requirements must be followed strictly and any failure to comply is likely to render the proposed action vulnerable to a successful application for an injunction. 

In protected industrial action, the trade union has statutory immunity from liability in relation to the main economic and industrial torts.  Dismissal of employees engaged in protected industrial action may be automatically unfair.

What is unofficial industrial action?

Unofficial industrial action is industrial action not authorised or endorsed by a trade union.  Individuals participating in unofficial industrial action generally have no right to claim unfair dismissal if they are sacked while taking part in the action.

What can an employer potentially do when faced with the threat of industrial action?

  • They can attempt to resolve the underlying dispute through Acas conciliation, or private mediation
  • They can stop paying those engaged in industrial action and/or seek damages
  • They can apply for an injunction to stop the industrial action
  • They can make contingency plans to mitigate the effect of industrial action, for example by arranging temporary workers to cover for workers taking part in industrial action participating in a strike
  • The can dismiss workers who strike or impose a sanction short of dismissal

We successfully obtained a High Court Injunction for a client in the automotive sector where balloting requirements were not correctly complied with.

Can an employer use agency workers to cover for workers on strike?

Employers are allowed, from 21 July 2022, to obtain temporary workers to fill the roles of workers taking part in industrial action.  Prior to this, employment businesses were prohibited from supplying agency staff to carry out work normally done by a worker taking part in a strike or other action.  This change in the law is the subject of a legal challenge –  judicial review proceedings brought by a several trade unions.

Are workers who strike entitled to be paid?

No, the employer is not obliged to pay them for the period they refuse to work irrespective of whether the action is protected or not.

Can an employer impose a sanction on workers taking industrial action?

Under TULR(C)A 1992,S.146 an employer must not subject any worker to a detriment because they are planning or organising industrial action.  Following the Court of Appeal’s decision in the case of Mercer v Alternative Future Group 2021 IRLR 620  a worker participating in industrial action is not protected from detriment and it would not, as a matter of UK law, be unlawful for an employer to impose a sanction short of dismissal on the employee.  This judgment is being appealed and could be overturned.

Organising or participating in unofficial industrial action ie not endorsed by a trade union will not qualify for protection against detriment as the action is unofficial.

Automatically unfair dismissal

Dismissal will be automatically unfair if an employee is dismissed for taking part in protected industrial action ie action which has statutory immunity and the employee’s dismissal takes place within the protected period which is 12 weeks from the first day of the protected industrial action which is extended by the number of days the industrial action was taking place and during any part of which the employee was locked out by their employer or if the employee is dismissed after the end of the protected period in certain circumstances.

Do employees going on strike have to inform their employer?

We have heard that many head teachers were not aware which teachers intended to take part in today’s strikes therefore making it impossible to plan or cover lessons.  Ordinarily, when an employee will not be attending work on a working day they are required to notify their employer and failure to follow absence reporting procedures may lead to disciplinary action.   Those who failed to notify their employer that they would be taking part in strike action could potentially be issued with warnings where they have breached the employer’s absence notification procedures.  Such action is not likely to amount to a detriment and an employer can impose a sanction short of dismissal.  The objective in issuing a warning would be to encourage the workers to give forewarning the next time they intend to strike.

Proposed change to Strike Laws

The Strikes (Minimum Service Levels) Bill was introduced to Parliament on 10 January 2023. It enables regulations to be made by the Secretary of State setting minimum levels of service that must be maintained during a strike in specified key public services such as fire and rescue, health, education, transport, border security and nuclear decommissioning and management of radioactive waste and spent fuel.  If passed, this law will allow an employer in those sectors to serve a “work notice” on a union that gives it a strike notice identifying the persons required to work and the work to be carried out so that the relevant minimum service level is provided. Failure to comply would result in loss of statutory immunity for the trade union and loss of protection against unfair dismissal for the workers.

If you have any questions arising out of the above or require advice in relation to industrial relations please contact us.