What makes industrial action unlawful?

The recent decision by players of Bolton Wanderers FC to go on strike over unpaid wages is a timely reminder of the dangers posed by industrial action. There can often be a lot of confusion when it comes to an individual’s right to go on strike and employers should note that doing so may be considered unlawful in certain circumstances.

It is worth clarifying that staff do have the right to take industrial action, however participants must follow the correct procedure laid down in the Trade Union and Labour Relations (Consolidation) Act 1992, in order to be protected from dismissal. Whilst striking is the most well known form of industrial action, this can also include slow-downs or working to rule in which employees do no more than the minimum required by the rules of their contract.

A key part of any action is the need for a respective trade union to hold a postal ballot, in which members can approve or reject the notion to strike over an ongoing trade dispute. An independent scrutineer must oversee the ballot and union must provide the employer with at least 7 days’ notice that the vote will be taking place, as well a copy of the voting paper which will be used no less than 3 days before the vote. This should contain information such as a summary of the dispute and the period(s) within which industrial action is expected to take place.

When it comes to the ballot itself, unions will need to ensure that at least 50% of those entitled to vote chose to do so and a simple majority of these votes must be in favour of industrial action. Slightly different rules apply when workers engaged in ‘important public services’, such as health services, are involved. Both employers and voters should be informed of the result as soon as is reasonably practicable, whilst employers will also need to receive at least 14 days’ notice before any industrial action will take place, unless both parties agree to 7 days’ notice, and whether it is going to be continuous of discontinuous. The action will need to begin within four weeks of the last voting day of the ballot, unless the union and the employer are able to agree an extension.

Picketing is another important aspect of industrial action and the Code of Practice on Picketing states unions must appoint a named member or official as a picket supervisor. These individuals must be equipped with a letter of authorisation and act as a point of contact to ensure pickets remain peaceful, do not cause obstruction and remain in line with the Code. Without this, picketing will not be lawful, and the union and its member will no longer be protected from civil legal action. Employers may claim damages equivalent to the losses arising from the union’s wrongful act, as well as an additional aggravated award, which is capped at £10,000 for unions with less than £5,000 members.

As you can see employees and unions are required to follow a detailed process both before and during any industrial action. Those who fail to abide by these requirements risk losing their protection against unfair dismissal, in which case employers will be free to take further action.

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