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Industrial Action

A trade dispute is a dispute between workers and their own employer about terms, conditions, suspension, duties, engagement of workers, allocation of work, discipline, union membership, negotiating procedures and union facilities.

In the course of such a dispute you can persuade people not to work. But if you do it on behalf of the union because you are a lay or full-time officer, or if the union adopts your actions, the union must conduct a ballot, and such calls for action will only be lawful if taken within four weeks of the result of a successful ballot or a further four weeks if agreed by the employer.

The ballot must ask all those at work at the time of the ballot who are likely to be asked to breach their contracts whether they are in favour of the industrial action. Small accidental mistakes in the ballot will not invalidate it.

Restrictions on the freedom to strike are placed on police and prison officers, apprentices (who must make up the time) and merchant seafarers. Limited action by postal workers is also restricted by law.

It does not matter what form the industrial action takes. It can be a strike, work to rule, ban on overtime (voluntary or compulsory), withdrawal of co-operation, or boycotts.

A trade union organises ‘official’ industrial action in circumstances where they have acted lawfully and are therefore immune from liability. This is significant as workers who participate in official industrial action are protected from dismissal by their employer.

In such cases, it is automatically unfair for an employer to dismiss an employee for taking part in official industrial action within a period of eight weeks starting from the date the employee began to take industrial action, or at any time after the eight-week period if the employee stopped participating in industrial action before the end of the eight-week period.

In some cases, it will be automatically unfair to dismiss an employee who continues to take industrial action after the end of the eight-week period where the employer has failed to take reasonable steps to resolve the dispute. Where a dismissal is automatically unfair, an employee may be entitled to be reinstated to their old job.

A union can be sued for damages if it organises industrial action that is unlawful. Much ‘secondary action’, that is, action taken against an employer who is not a party to the main trade dispute, is unlawful. If the union has organised this, an injunction can be granted to prevent it, and claims for damages of up to £250,000, depending on the size of the union, can be awarded.

If employees take unprotected industrial action and the employer dismisses all those taking the action at the same workplace and none is re-engaged within three months, none of them has any claim for unfair dismissal. After the three-month period, selective re-engagement is permissible. This means that if you take part in unofficial or unprotected industrial action, you are always at risk whatever the form of industrial action.

Employers sometimes withhold pay for all or part of the time that you have been engaged in limited industrial action. They are entitled only to deduct a proportion of pay representing the proportion of your time lost by your action.

Action in pursuit of union membership agreements - the closed shop - is always unlawful.
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