Industrial action

Forms of industrial action

Industrial action usually happens when a dispute in the workplace can't be resolved through negotiation.

There are three main forms of industrial action:

• strike - where workers refuse to work for the employer
• action short of a strike - where workers take action such as working to rule, go slows, overtime bans or callout bans
• lock-out - a work stoppage where the employer stops workers from working

Industrial action is 'official' if it is formally backed by a trade union and members of that union are taking part in it. If you're involved in industrial action against your employer, you'll probably be in breach of your employment contract and you are therefore unlikely to be paid when taking industrial action.

However, you will be protected against being dismissed for taking industrial action provided your union follows the right procedure when organising it.

Avoiding industrial action                                                       

Industrial action should only be taken if it's not possible to resolve a dispute by other means, as it can be costly and damaging to both sides.

There are likely to be formal arrangements for resolving disputes which usually involve your union.

Sometimes it may be sensible to bring in outside help. The Labour Relations Agency (LRA) can help employers and employee representatives to resolve disputes in a number of different ways.

• Industrial action and the Law - your right to prevent disruption
• Workplace disputes
• Information and consultation of employees
• Managing conflict

Procedure for taking industrial action

Industrial action is protected by law as long as:

• the dispute relates to a trade dispute between workers and their employer
• a secret postal ballot has been held and the majority of members voting have supported the action
• detailed notice about the action has been given to the employer at least seven days before it commences

There's no protection for:

• unofficial industrial action
• action called by a union unsupported by a ballot
• secondary industrial action that is in support of workers of another employer
• action promoting union labour only practices
• action in support of anyone dismissed for taking unofficial action

Holding a ballot for industrial action

Your trade union is not allowed to ask any of its members to take part, or continue taking part, in industrial action unless it has held a 'properly conducted secret ballot'. A ballot is the name given to the process of voting.

The trade union can only call on members to take industrial action where the majority of those who voted, voted 'yes' to taking action. If there is majority support, the action must begin within four weeks of the ballot or eight if it's agreed between union and employer.

If you're not in a trade union, then the provisions relating to secret ballots do not apply. You should get specialist advice as to what rules apply to you.

Carrying out industrial action ballots

Industrial action ballots need to be carried out correctly (properly conducted). An industrial action ballot is properly conducted if:

• it is subject to scrutiny by a qualified independent person appointed by the trade union (this is not needed if the number of members entitled to vote is 50 or fewer)
• it was held before the trade union asked its members to take, or continue taking, industrial action
• the right to vote is given to all members the trade union intends to ask to take part in the industrial action
• it is conducted by marking a voting paper
• voting is by post
• the voting paper includes information about the voting process (such as what you are voting on and where to send your paper)
• as soon as the trade union can, after holding the ballot, it tells everyone entitled to vote how many votes were cast and the number of 'yes' votes, 'no' votes and spoiled voting papers

The voting paper must also ask those members to answer 'yes' or 'no' to whether they are prepared to take part in either:

• a strike
• industrial action other than a strike
• both of these

The Code of Practice on industrial action ballots and notice to employers sets out all the rules on industrial action ballots.

Complaining about trade union ballots

A properly conducted ballot gives you the choice to take part in or continue with industrial action. You have the right to apply for a court order if your trade union asks you to take action without one. You are advised to take legal advice before applying to the court.

The court might be prepared to grant a temporary injunction against the trade union if the court cannot hear your case straight away. A temporary injunction forbids the trade union from organising the industrial action you are complaining about until the case has been heard.

If the court is satisfied that no ballot was held, or was not conducted properly, it may make an order against the trade union. The order can prevent the trade union from organising industrial action or stop the industrial action.

If the trade union does not do what the order requires, you have the right to apply to the court to ask for the trade union to be declared in contempt of court.

Other industrial action ballots

Sometimes, trade unions ballot their members about ending industrial action after it has begun, or about offers made by the employer to end the dispute in question. Those ballots are not a statutory requirement, and are for trade unions to decide whether to arrange or not, in-line with their rules.

Trade unions sometimes hold 'consultative' or ' indicative' ballots asking members whether they might be prepared to take industrial action about a particular issue. Trade unions are free to hold these ballots in-line with their rules. However, the trade union will need to hold a further legal ballot if they wish to proceed with any industrial action.

Taking part in industrial action

 If you take industrial action, you will probably be in breach of your employment contract and your employer:

• is unlikely to pay you for the period during which industrial action is taken
• can sue you for breaking your employment contract (this does not happen often but is always possible)

Taking industrial action does not usually break your continuous employment. However, the days you took industrial action on will not usually count towards your total length of service with your employer.

This means that your periods of employment both before and after you took industrial action will normally count towards your total length of service. This is important when working out certain rights under your employment contract (for example, your pension) and some statutory rights (for example, statutory redundancy pay).

• Continuous employment

Being dismissed for taking part in protected industrial action

You will usually be protected against being dismissed for taking part in ‘protected industrial action’.

Industrial action will normally be protected industrial action if it is official action organised by your trade union in-line with the law. It will be organised in that way if:

• the dispute is a trade dispute between workers and their own employer
• a secret postal ballot has been held and the majority of members voting have supported the action
• detailed notice about the action has been given to the employer at least seven days before it commences
• it has been called for by someone in the trade union with proper authority

If you are dismissed for taking industrial action for 12 weeks or less (including a period of just a few hours or days), you will be able to make a claim for unfair dismissal and your dismissal will be unfair. This applies whether you are dismissed while taking part in the action or at any time after you stopped taking part.

When working out whether you have been taking part for 12 weeks or less any lock-out days (when your employer stops you from working) are not counted.

• Unfair dismissal

If you continue to take part in protected industrial action for more than 12 weeks your rights are different. If you are dismissed for taking part after the end of the 12 weeks your dismissal will only be unfair if, at the time of your dismissal, your employer has not followed reasonable steps to settle the dispute with the trade union.

For example, it may be unfair for your employer to dismiss strikers if your employer has unreasonably refused a request by the trade union to involve a third party to conciliate (help agree) a settlement.

Dismissal and unprotected industrial action

Official industrial action organised by a trade union is 'unprotected' if:

• the trade union has failed to hold a postal ballot in-line with the law
• the trade union has not told the employer, in-line with the law, about the industrial action ahead of a ballot or ahead of the industrial action
• it has been disowned by the trade union -for example because someone without authority called for the action, or because the trade union considers the dispute to be resolved - sometimes called repudiated action
• it is secondary industrial action - in support of workers of another employer - sometimes called sympathy action
• it promotes union labour only practices -also known as a closed shop 
• it is in support of any workers who have been dismissed for taking unofficial action
• other aspects of industrial action law have been breached by the trade union

If you are dismissed while taking part in unprotected industrial action called for by your trade union, you cannot normally claim unfair dismissal if all the other employees taking part are dismissed as well.

You can complain about unfair dismissal if you are dismissed:

• for an automatically unfair reason - for example because of your duties as a health and safety representative
• while taking part in the industrial action but others taking part are not dismissed
• for taking part in unprotected industrial action, after you stopped taking part

Just because you can make a claim for unfair dismissal does not mean it will be successful.

Dismissal and unofficial industrial action

Unofficial industrial action is industrial action that is not organised by, and is not the responsibility of, any trade union. You normally have no right to claim unfair dismissal if you are dismissed while taking part in this kind of action.

You can still claim if the reason for your dismissal was automatically unfair.

Choosing not to take part in industrial action

You don't have to take part in industrial action if you don't want to (even if the majority voted in favour). Your union can't discipline you for this or for any other reason classed as unjustified.

If you're disciplined for not taking action or for crossing a picket line, you can complain to an Industrial Tribunal within three months of the disciplinary action.

• Picketing and picket lines

Industrial action by workers who are not trade union members

If you take part in industrial action when you are not a trade union member you are normally treated as taking part in unofficial action. This means that if you are dismissed while taking part in the action you normally have no right to complain of unfair dismissal.

You can still claim if the reason for your dismissal was automatically unfair.

You are treated as taking part in official action if both:

• members of a trade union are taking part in it
• the action is official industrial action taken by their trade union

This means that the law treats you in the same way as it treats trade union members. Your rights if you are dismissed depend on whether the industrial action is protected or unprotected and when you are dismissed.

What you should do next

Before taking any form of industrial action, always consult your union. If you're on strike you may have problems claiming state benefits. Contact your local Jobs and Benefits office for advice.

You can complain to an Industrial Tribunal if you think you've been unfairly dismissed or mistreated by your employer for taking part in Industrial Action.

• How to resolve a problem at work

Where you can get help

For information about a particular union contact them directly or via the Britain's Unions (TUC website)

You can contact your union for advice and information on industrial action.

The Labour Relations Agency (LRA) and Advice NI offer free, confidential and impartial advice on all employment rights.