Unfair dismissal of striking workers 1

New measures will come into force on 24th April to protect workers from dismissal in connection with lawfully organised industrial action. These measures amend the existing trade union legislation and set out the circumstances where employees dismissed for participating in lawful industrial action can claim automatic unfair dismissal.

It will be automatically unfair to dismiss an employee within 8 weeks of the start of his participation in any lawfully organised industrial action. It is intended that this period will provide a valuable breathing space during which employers and unions can try to resolve disputes by negotiation before they escalate.

An employer will also face claims for automatic unfair dismissal if he dismisses an employee after the 8 week period in certain circumstances. If an employee has ceased industrial action within the 8 week period then it will be automatically unfair to dismiss him even after this period. If the employer has not taken reasonable procedural steps to resolve the dispute it will also be automatically unfair to dismiss an employee after the 8 week period even if the employee has participated in the action for longer than 8 weeks.

In practice employers will not be able to dismiss employees where their participation in industrial action lasts less than 8 weeks. Where their participation lasts longer than 8 weeks the behaviour of both the employer and the union will be scrutinised. The conduct of both parties will determine whether the employer has taken sufficient procedural steps to resolve the dispute before making dismissal a fair option.

There is no qualifying period or age limits and these rights apply where the employee starts to take industrial action on or after 24th April. These rights are introduced by the Employment Relations Act 1999 (Commencement No 5 and Transitional Provision) Order 2000. They bring into force Section 16 and Schedule 5 of that Act.

If you require further advice or assistance on trade union issues please contact Simon Jeffreys on 0171 367 3000 or at [email protected]