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Taking part in industrial action

Find out about your employment rights if you are thinking about taking part in industrial action. For example, if you are dismissed for taking part in industrial action, you may be able to claim unfair dismissal.

Being paid during industrial action

You are free to withdraw your labour by taking industrial action and you cannot be forced by the courts to stay at or return to work.

If you take industrial action, you will probably be in breach of your employment contract andyour 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 daysyou took industrial action onwill 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 outcertain rights under your employment contract (eg your pension) andsome statutory rights (eg 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 inprotected industrial action.

Industrial action will normally be protected industrial action if it is official actionorganised by your trade unionin-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 withproper authority

If you are dismissed for takingindustrial action for12 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) aren't counted.

  • Industrial action and trade unions
  • 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 reasonablesteps to settle the dispute with the trade union.

For example, it may be unfairfor 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 (eg 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 aredismissed:

  • for an automatically unfair reason (eg 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 wasautomatically unfair.

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 stillclaim 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.

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