New rights for striking workers

Since 24 April 2000, anyone taking industrial action will benefit from new legal protection against unfair dismissal. Backup explains what the new rights entail.

In the UK workers have never had proper legal protection against dismissal when taking industrial action. Employers have always been free to sack all those engaged in the action and take on new workers. The only legal constraints were over offers of re-employment together with a ban on selective dismissals. However, even this only applied where industrial action was official, lawful, and sanctioned by a ballot.

In the UK therefore an employer could:

* dismiss everyone, even if they were taking lawful, official industrial action;

* dismiss everyone and then take some back, after three months; or,

* if the industrial action was unofficial, select those they wanted to dismiss.

Workers who were dismissed while taking industrial action, and this included any action even if it was just a work to rule or overtime ban, were barred from going to employment tribunals to claim unfair dismissal.

The International Labour Organisation (ILO), the body charged with setting and maintaining international standards, has repeatedly condemned the law in the UK because an absolute right to dismiss strikers is in breach of the right to organise, enshrined in international law. This repeated criticism from the ILO caused the government to introduce the new legislation.

Section 16 and schedule 5 of the Employment Relations Act 1999 states that an employee taking "protected industrial action" that is action, which is official and where there has been a lawful ballot, has the right, at least in the first eight weeks, not to be unfairly dismissed. The right applies provided no other "torts" (civil wrongs) other than the breach of the contract itself, are committed. It is automatically unfair to dismiss an employee because they are taking official industrial action during that eight-week period. It is also automatically unfair to dismiss an employee who, within the eight-week period, has stopped taking industrial action. The eight weeks begins from the date when the individual commences industrial action. This could mean that the dates are different for workers depending, for example, on whether they are on different shifts and therefore technically began their industrial action at a different time.

The protection applies only where the dismissal is due to the industrial action. It does not prevent an employer from dismissing a striking employee for reasons other than the industrial action itself. It would be up to a tribunal to decide what were the reasons for the dismissal.

Outside the eight weeks a dismissal can still be unfair if the employer has not taken reasonable procedural steps to resolve the dispute. An employment tribunal will not look at the merits of the dispute but will consider whether the employer and/or the union had:

* complied with established procedures;

* offered or agreed to start or restart negotiations;

* unreasonably refused a request to make use of conciliation; or

* unreasonably refused to use mediation services in relation to the procedures being used to resolve the dispute.

It is important to note that the tribunal will look at the union's conduct as well as that of the employer. This could give rise to situations where employees lose the right to claim unfair dismissal due to the union stance.

An important part of the new protection is that it applies regardless of the employee's age or length of service. This means that even if an employee has worked for less than a year, and therefore cannot normally claim unfair dismissal, they will be protected. It also means that employees working beyond their pension age, who normally lose the right to claim unfair dismissal, are protected.

If a tribunal finds that a dismissal is unfair it can award compensation in the same way as for an ordinary unfair dismissal. Such compensation is subject to a maximum of £50,000. The tribunals will also be able to make orders for re-instatement or re-engagement. However, these would not take place until after the industrial action has ended. Additionally, as with other unfair dismissal claims, the employer can refuse to comply and pay additional compensation instead.

The Act also provides that the ballot paper for industrial action must specifically state that the protection exists. It must also state that any dismissal during an official and lawful dispute "will be unfair if it takes place fewer than eight weeks after you started taking part in the action" and that even beyond the eight week period a dismissal could be unfair.

Department of Trade and Industry minister Alan Johnson describes the new rights as "a powerful incentive for both bosses and unions to engage constructively in resolving differences".

However, one issue, which the new law does not address, is what happens to workers taking unofficial action. Action which does not have the support of the union or which is not supported by a valid ballot is outside the scope of the new protection. Employers continue to have the right to dismiss all strikers or to selectively dismiss alleged ringleaders. Employees so dismissed remain barred from the right to go to an employment tribunal.

To bring the new right into force, the 1999 Act required specific legislation and this is contained in The Employment Relations Act 1999 (Commencement No 5 and Transitional Provision) Order 2000. The Order was made on 24 March 2000 to come into effect one month later.