New Anti-Strike Laws – Understanding the rights and duties of employers and employees in industrial action
service levels” in key public sectors.
The Basics
Industrial action is the catch-all expression for when a group of employees refuse to do something, whether or not in breach of contract, as “a bargaining weapon“. It can take the form of a strike (a stoppage of work by employees altogether) or action short of a strike such as working to rule (for example, refusing to work a minute outside of contracted hours). This article focuses primarily on strikes.
Organising or participating in strikes is a sensitive decision and is subject to very strict conditions. Employees do have an effective right to strike (when certain conditions are met) but almost certainly employees participating in a strike will be in breach of their employment contract. However, when a strike has been lawfully organised then certain protections are provided, such as an employee who is dismissed for taking part in a strike will be considered to be automatically unfairly dismissed.
Statutory Immunity
Trade Union and Labour Relations (Consolidation) Act 1992 provides statutory immunities which means that trade unions and individual workers can, in certain circumstances, organise industrial action without the risk of being subject to legal action from the employer.
To obtain statutory immunity and be considered ‘protected industrial action’ the following conditions must be present for a strike:
- Trade Dispute: there must be a trade dispute and the action has been called in contemplation/furtherance of that dispute.
- Ballot and Notice: the correct procedural secret ballot/notice requirements are satisfied.
- Not an Unlawful Reason for the Strike: the action has not been called for certain reasons (secondary action / promote union closed shop practices / not in support of any employee dismissed while taking unofficial industrial action). In addition, the action must not include unlawful picketing.
Procedurally, any action must have the support of a properly organised ballot of union members, and the union should have complied with notification requirements. A trade union that calls on its members to strike will have no immunity unless it first holds a properly conducted secret ballot. This includes stringent requirements such as appointing an independent scrutineer for ballots with more than 50 members entitled to vote. There are equally strict notice requirements, for example written notice of the date of the strike must reach the employer no less than seven days before the day specified in the notice.
New Proposed ‘Anti-Strike Law’
The government has proposed that new laws may be introduced which will introduce minimum service levels for certain public sector services such as fire, ambulance and rail services. The government will seek to limit the disruption of striking essential services, so that unions could be sued by employers if minimum levels of service are not met.
It is not yet known what those minimum service levels might be and also the impact the new legislation may have on individuals striking. However, it is worth noting that nurses in their recent strike, had a national agreement about providing a minimum level of service so they could deliver safe industrial action and have agreed minimum safe levels of staffing with employers in the weeks leading up to strike action.
Existing Sector Specific Rules
For a strike to be protected, at least 50% of employees entitled to vote in the ballot must have voted. However, there are special turnout rules for “important public services” where in addition to the 50% turnout rule also 40% of those entitled to vote must have voted in favour of the action. Important public services include health, education, fire services, transport and border security.
The only exception to strike rules is for police or prison officers who cannot lawfully withhold services and it is an offence to try and induce them to do so.
What can an Employer do during a strike?
- Withholding Pay or Pension – Participation in a strike will be regarded as a breach of the employment contract and will therefore be unpaid for the periods during which are not worked. Periods of participation in a strike action can be omitted from the employees total pensionable service. At the discretion of the employer, the pensionable service may be restored by the employee paying the full contribution.
- Dismissal – As noted above, it will be considered an automatically unfair dismissal if an employee is dismissed for participating in an official and protected strike. However, the employer will be immune from an unfair dismissal claim if, at the time of their dismissal, the employee was taking part in an unofficial strike or other unofficial industrial action (assuming the dismissal is not unfair for any other reason).
- Contingency Staff – Previously agencies were prevented from supplying an employer with agency workers to perform the duties performed by striking staff. However, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) have changed the law so that there is no ban on engaging temporary workers when industrial action is taking place. However, permission has been granted to unions to proceed with a judicial review of the regulations.
- Picketing – Picketing is permitted but is subject to strict rules. Unlawful picketing may expose the pickets themselves to civil liability or criminal prosecution.
Practical Issues of Strikes for the Public Sector
Despite many public sector organisations avoiding strikes taking place within their own workforce, they are still being impacted by the disruption caused by strikes. We consider some scenarios where strikes have an impact on staff and how an employer should respond.
An employee fails to attend work because of rail strikes
The rail strikes have had a varying impact on public sector organisations. Office staff have largely been able to work from home and rotate their days attending the office causing no disruption. However, for key workers in public facing roles such as teachers, health and social care, the disruption to attendance levels is a serious concern.
It is an employee’s duty to attend work and complete their duties. The employee should seek to make practical arrangements to attend work. Where this is not possible an employer is legally able to deduct pay for the period not worked. The employer should consider the consequences of such action on staff morale and ensure that any action is consistent and transparent. We would advise that the onus is on the employer to prepare effectively for the strike days in analysing availability of staff rather than putting the onus on the individual.
A local authority has organised an outreach event for children to participate in new sports, but the date falls on a period of nurse and ambulance strikes
There is a risk that those attending the event are at a higher risk of injury. The absence of normal levels of health care services may increase the risk of those participating in high-risk activities. You may therefore consider whether the local authority should cancel the event?
We would suggest that this may not be necessary, provided that the risk assessments and safety precautions factor in this potentially increased risk so that safeguards are considered.
A local authority housing association must send letters to tenants within a strict timeframe during a period of postal strikes
Postal strikes will inevitably impact on the service of letters. Where it is of paramount importance that communication is received by tenants’, steps must be taken to plan and prepare for the delays. Frontloading certain tasks and posting earlier than typical will be key in meeting deadlines. Tenants may not accept ‘postal strikes’ as an adequate reason for delayed receipt of important communication.
A Look Ahead
There has been an escalation of strike action, and we may not yet have seen the worst of the impact on services. The General Secretary of the TUC, Paul Nowak is reported in December 2022 to have warned of a “rolling wave” of industrial action in 2023 with unions coordinating strikes on the same day. The government has announced new anti-strike laws but this is unlikely to have an impact on the winter of strikes. Public sector employers must continue to remain on high alert in managing the quickly changing conditions.
The one key takeaway, whether it is for managing services to cope with internal industrial action or the impact of external strikes on your workforce, is preparation and good communication. The various rules for industrial action may seem daunting but knowing the processes involved will be invaluable in minimising the disruption. With legal challenges such as the judicial review to the regulations allowing agency staff to fill in for striking workers and new strike laws being announce, it is of paramount importance that public sector organisations remain up to date on developments.
Sharpe Pritchard has an experienced employment team, who regularly advise public sector clients on all manner of contentious and non- contentious employment law. Sharpe Pritchard is ready to advise on any industrial action queries employers may have.
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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.
