Sickness and strikers

An employee who is off sick when industrial action begins is unlikely to be taking part in the action according to the EAT. Employees off sick have no obligation to supply their labour and therefore cannot be said to be withdrawing it. The ruling means that if an employer dismisses those taking strike action, but does not dismiss employees who have been off sick, those who are dismissed cannot have access to unfair dismissal protection by alleging that not all relevant employees have been dismissed. The only circumstance where this rule would not apply is where the sick employee is actively participating in the industrial action.

* Pointon v BBA Friction EAT/1380/00