Coping with Strikes

by Hazel Phillips

Following the recent public sector strikes and the stoppages at the Grangemouth Refinery, this month’s focus is on reviewing the law on industrial action to help you cope with strikes.

Although strikes appear to be on the increase, figures published by the Office of National Statistics show that Britain actually has one of the lowest number of days lost through strikes in the European Union. 

Strikes lasting no more than 24 hours accounted for over half of the days lost last year but statistics appear to show that strikes ballots are being used by unions more as a negotiating tactic than anything else because only 10% of ballots in favour of strike action in fact resulted in that action being taken.

There is actually more than one definition of a strike in English law but it is usually understood to include any concerted stoppage of work.  However, employers should remember that working to rule counts as action short of a strike, although employers may be able to pay less to employees who take this kind of action (see below).

Unusually, although there is a legal definition of a strike, there is actually no right to strike in English law.  Having said that, the European Court of Human Rights has held that people must have the right to strike otherwise there would be a restriction on a trade union’s powers to protect its members.  The right to enjoy the protection of a union is encompassed in article 11 of the Human Rights Act 1998.  This means that although the right to strike is not specifically set out in English law, the Human Rights Act probably does now extend to give all UK employees that right.

Nevertheless, employees are only protected when they take part in official strike action.  Any strike or industrial action which is not authorised or endorsed by a trade union will generally be unofficial strike action.  An employee who participates in unofficial strike action and is dismissed as a result is prevented from claiming unfair dismissal and does not enjoy certain other rights normally afforded to employees under English law. However, employees who take part in official strike action are protected from dismissal as a result of their participation if the dismissal occurs;

1. within 12 weeks of the employee commencing industrial action; or

2. after the 12 week period but the employee had returned to work before the end of the 12 weeks; or

3. later than 12 weeks after the strike began but the employer had not taken all reasonable steps to resolve the dispute.

When a strike is called, it is always worth checking whether the employees that take part in the action are actually in a union which has endorsed or joined the strike. If not, they may be classed as taking unofficial strike action which could be grounds for dismissal. However, this is not to say that employers can just sack those taking unofficial strike action.  As with any dismissal, employers should always follow the Statutory Disciplinary and Dismissal Procedure (SDDP).

More important for most employers is the fact that days taken as strike action can be unpaid. Employers are therefore entitled to deduct from a striking employee’s wages a day’s pay for each day that the employee is out on strike.  Such a deduction will not be an unlawful deduction.  However, when calculating a day’s pay for these purposes, the employer is only allowed to recover the amount that the employee would be entitled to sue for if the deduction had been unlawful.  What this means is that holidays cannot be taken into account when calculating how much pay should be deducted.  The current calculation of a day’s pay (for a typical employee working a 5 day week) is therefore 1/260th of the employee’s annual salary.

Employers can also seek to deduct an appropriate sum from the salary of an employee who is refusing to perform part of their contractual duties. If the refusal affects a material part of the employees role then the employer may be able to withhold a full day’s pay be it is more likely that pay would need to be deducted in proportion to the time that it would have taken the employee to complete the task that they are refusing to do. Since a deduction in pay is a disciplinary sanction, the SDDP should have been followed before the deduction is made.

If the current predictions are right and we are beginning to enter a recession, strike action may become a more prevalent part of everyday life. Hopefully this will not be the case for most employers, but if this is an issue that you face it is worth seeking legal advice to assist you through the process.

Hazel Phillips is an employment law solicitor in Burnetts’ employment law department. For further information or advice, contact the team on 01228 552222 or visit the employment law pages.

July 2008