Striking out alone? What is the law on industrial action

From the railway and postal workers to barristers and nurses, 2022 has been dominated by industrial action and workers voting to strike to negotiate better pay and working conditions.

For the first time in its 106-year history, the Royal College of Nursing (RCN) decided to strike after the results of a ballot vote of industrial action, with members demanding better wages and raising concerns for the overall state of the service and safety of patients.

On March 14th 2022, the Criminal Bar Association (CBA) overwhelmingly voted to undertake industrial action in protest of stagnant wages, cuts and freezes to legal aid rates and excessive working hours within the profession. On August 15th 2022, more than 500 dock workers at the Port of Liverpool voted by 99% to strike over pay and working conditions, with a proposed salary increase amounting to a real terms pay cut for workers after being adjusted for inflation.

With soaring energy prices and stagnant wages, many families across the country are feeling the pinch. Given so many professions across the country are taking part in industrial action – what is striking, when can it be taken and what does the law say about your ‘right to strike’?

What is industrial action?

When many people think of industrial action, the first images that come to mind are crowds with banners and megaphones, however, this is not always the case. Industrial action can consist of a variety of strategies ranging from strike action or actions short of striking such as ‘go-slows’ or ‘working to rule’. These involve workers either organising collectively to work deliberately slowly and create problems for their employer, or performing their jobs to the letter and refusing to take on any additional duties they are not contractually obliged to carry out.

Whilst numerous strategies are available, the main questions in the mind of those considering taking industrial action are likely straightforward. How is industrial action organised, and what are the potential consequences if I take part?

Is it legal to strike in the UK?

This query is likely the first and most important thing working people think about when considering whether to take strike action. Whilst there is no legal right to strike in the UK, it is legal if organised by a Trade Union in compliance with the Trade Union and Labour Relations (Consolidation) Act 1992.

For example:

  • The Union must be recognised by the workplace it is active within.
  • It must have raised a dispute on behalf of its members (in particular over a dispute between workers and their employer over issues such as terms or conditions of employment).
  • The Union can then ask members to vote via post in what is known as a ballot to strike. This allows union members to express whether they wish to be involved in the proposed strike action.
  • Someone authorised by the Union’s rules such as the General Secretary must authorise the industrial action.

If these conditions are satisfied and industrial action is called as a result of an organised ballot, you cannot be dismissed by your employer for any participation. You can claim unfair dismissal if you are dismissed from work for your involvement within 12 weeks of the action beginning. That being said, after 12 weeks you can be dismissed for taking industrial action, but only if your employer has tried to settle the dispute. You can only bring a claim for unfair dismissal if you have two years of continuous employment.

However, if you are a trade union member and elect not to pursue industrial action, you are not obligated to do so and cannot be disciplined by the Union for choosing not to participate. If you feel that you have been excluded or expelled from your Union for your personal decision, you can use your Union’s complaints procedure or complain to an industrial tribunal.

What if I’m not a Union member?

With so many different rules and criteria required for a strike to be classified as legal, it is natural to question what can happen if these conditions are not satisfied.

Non-Union members who take part in legal, official industrial action have the same rights and protections not to be dismissed for taking action as Union members themselves. However, as only a Union can gain a mandate to strike through current legislation, any strike which takes place without Union involvement poses potential risks for those involved as it can amount to a breach of the employment contract, and those involved have no protection from potentially losing their jobs.

That being said, unofficial strikes – often referred to as ‘wildcat strikes’ which are organised outside of a Union – can still prove effective. Earlier this year, workers across at least eight different Amazon warehouses took part in such action, demanding a salary increase from £10.50 to £15 an hour. Some engaged in a slowdown work campaign, processing just one package an hour to ensure they were still compliant with the terms of their contracts and could continue to receive pay whilst others organised sit-ins at their respective canteens. The strike has however faced some recent difficulties. Under the current law, any ballot proposing industrial action must be voted on by at least 50% of that Union’s members to be classified as legal, however, the Amazon ballot failed to meet this requirement by just three votes. That being said, the protest shows little sign of slowing down with negotiations on how to proceed still ongoing.

With further strikes being planned in the run-up to Christmas for ambulance drivers and other workers, it is becoming increasingly apparent that mass industrial action across the country is unlikely to be relegated to a 2022 phenomenon. It only remains to be seen who will cast their ballot next.

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