Effect of industrial action on statutory and contractual employment rights

Statutory rights

Industrial action can affect statutory employment rights in two ways. First, it can delay an employee from qualifying for such rights, and secondly, it can prevent an employee who qualifies from enjoying them.

Continuous service

Although a strike breaks the contract of employment it does not break continuity of employment if the employee returns to work after the strike ends. A strike will, however, delay the attainment of any necessary qualifying period as the employee's starting date is regarded as being postponed by the actual number of days between the last working day before the strike and the day on which work resumes.

Continuous service in the event of action short of a strike is not covered by legislation, so qualifying periods are not affected by such action.

Unfair dismissal

Section 238A of  the Trade Union and Labour Relations (Consolidation )Act 1992 provides that where an employee is dismissed for taking 'protected' industrial action he shall be regarded as unfairly dismissed if the dismissal takes place within 12 weeks of the employee starting the industrial action. The employee will also be regarded as unfairly dismissed if he is dismissed after the 12-week period but he had stopped taking action before the end of that period. Industrial action is protected if it is official action for which the union has immunity under s.219.

If the employee had not stopped taking action before the end of this period, but the employer had not taken reasonable steps to resolve the dispute, the dismissal would also be unfair.

In determining whether reasonable steps have been taken the following will be taken into account:

• Whether the employer or union had complied with procedures established by any applicable collective or other agreement
• Whether the employer or union offered or agreed to commence or resume negotiations after the start of the protected industrial action
• Whether the employer or union unreasonably refused after the start of the protected industrial action, a request that conciliation services be used
• Whether the employer or union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used

Where there was agreement to use conciliation or mediation services a number of issues relevant to the meetings held are taken into account (s.238B):

1. Whether the employer or the union was represented by an appropriate person
2. Whether the employer or union co-operated when making meeting arrangements
3. Whether the employer or union fulfilled any commitment to take any particular action
4. Whether the employer or union representative answered any reasonable questions

If the protection of s.238A is not available, s.238 provides that an employee dismissed while taking part in official industrial action, or when the employer was conducting a lock-out, will not be able to make a complaint of unfair dismissal to an employment tribunal unless:

• At the date of the dismissal, one or more of the employees also taking industrial action had not been dismissed; or
• One or more of the other employees dismissed for taking part were subsequently offered re-engagement within 3 months of their date of dismissal, and those employees were employed at the same establishment as the employee claiming unfair dismissal

Employees taking part in unofficial industrial action cannot bring a claim of unfair dismissal under ss.238 or 238A. The only circumstances in which they may claim unfair dismissal are where the principal reason for the dismissal relates to:

• jury service
• pregnancy/family reasons
• legitimate health and safety activities
• working time and employee representation cases
• whistleblowing
• flexible working

Employees taking part in official industrial action may also claim unfair dismissal on these grounds (except whistleblowing) regardless of the operation of the above sections.

Redundancy payments

Employees only have a right to a redundancy payment where the reason for their dismissal is redundancy. Special provisions, however, apply where strike action begins after employees have been given a redundancy notice of dismissal. Where dismissal results from such action, an employee will retain their right to a redundancy payment. However, an employer can require an employee who has taken strike action during their notice period to work beyond the expiry date of the notice by the number of days that they were on strike.

Notice periods

Where industrial action constitutes gross misconduct, it entitles the employer to dismiss the employee without giving either contractual or statutory notice periods. Should the industrial action occur during a period of notice then the employer can still dismiss summarily without paying for the rest of the notice period.

If the employer chooses not to dismiss when an employee already under notice of dismissal goes on strike, then it is not necessary to pay for the days on strike.

Under s.87 of the Employment Rights Act an employee under notice is normally entitled to receive normal pay throughout the notice period, even if absent due to sickness or maternity, adoption, paternity, parental or annual leave. However, if an employee takes strike action after handing in their notice, they will have no statutory entitlement to full pay if they are subsequently absent after returning from strike. They will however retain any contractual right to sickness, maternity and holiday pay.

Maternity leave and pay

Section 11.7(b)(ii) of Part 2 of the Local Government Services NJC Agreement provides that a woman on maternity leave can delay her return where industrial action causes an interruption of work which makes it unreasonable for her to resume work on the due date (e.g. the rest of her colleagues are on strike and there is no work for her to do). She may instead return when work resumes, or as soon as reasonably practicable thereafter.

To be entitled to statutory maternity pay (SMP) a woman must have the necessary continuous service and have stopped work wholly or partly because of pregnancy. If she is absent from work, however, because of strike action at the expected commencement of maternity leave, it is unlikely that she will be able to claim successfully that she is absent because of pregnancy. Consequently, there will be no entitlement to SMP until she returns to work and triggers the entitlement.

Periods spent on strike do not break continuity for the purposes of qualifying for statutory maternity pay and leave. However, the number of days between the last working day before the strike and the day on which work resumes will not count.

In practice a union will often 'exempt' pregnant women from taking part in official industrial action.

Statutory sick pay

Employees who are absent from work through illness before a stoppage of work retain their right to statutory sick pay (SSP) during the period of industrial action. Where, however, an employee is away from work because of a trade dispute when their sickness begins, they are excluded from SSP, except where he or she has no 'direct interest' in the dispute and has not participated in it at any time.

If an employee returns to work after industrial action and then goes off sick, the average earnings for SSP purposes will reflect the lower earnings during the action, as eligibility for SSP is based on earnings during the previous eight weeks of employment.

Contractual rights

If there has been no withdrawal of labour (i.e. there has been action short of a strike), then normally there will be no effect on the employee's entitlement to the various occupational benefits that depend on continuous service. If, however, there has been a strike the position is less clear.

The national conditions of service do not specify how occupational benefits (such as entitlement to annual leave, annual increments etc) should apply in such circumstances. Except in the case of a national dispute, where the final settlement will cover these matters, it will be for each authority to reach a decision, having regard to the terms of the settlement and previous practice. If employees have been dismissed during the strike and subsequently re-engaged once the strike is over, then there is no break in service, but the period on strike will not count for continuity purposes. (Hanson v Fashion Industries (Hartlepool) Ltd [1980] IRLR 39).

During strike action

Employees will have no rights to conditions of service benefits when they are on strike. Procedures will need to be adopted which make it clear whether an employee is taking action or is on sick leave, holiday or other legitimate absence.

Annual leave

Where strike action begins during a period in which an employee is on annual leave, then in the absence of evidence to the contrary, he or she should be deemed to be on leave and not on strike. Authorities will need to be careful about agreeing to annual leave for employees requesting it just before, or on, the day strike action starts. Authorities may wish to have a policy of refusing requests for leave by striking employees during the period of industrial action.

Sick leave

Employees who are absent on account of sickness before industrial action starts should be assumed to be on sick leave, providing that the necessary certification is produced. If the employee reports as sick on the day the action starts, the authority will need to make its own judgment, taking into account any evidence that the employee can provide, whether he or she should be regarded as on sick leave or on strike.

Authorities may wish to introduce new arrangements for reporting sickness immediately before and during a period of industrial action. For example, an authority may introduce a requirement that all periods of absence should be supported by a doctor's certificate from the first day of absence. In such cases, it would be advisable for the authority to offer to pay for any charge made by the doctor to ensure that the change in the sickness reporting arrangements are seen to be fair and reasonable in the circumstances.

Such a policy should be introduced in advance of any dispute and authorities should avoid, at all costs, knee-jerk reactions to absences during industrial action.

Rest days

If an employee takes part in a strike that has started before his or her rest day, then it can be assumed that he or she is taking such action on the rest day if the strike continues into this day. If, however, the strike starts on a rest day, the authority may decide, in the absence of any other information that the employee is not taking industrial action until the time when he or she fails to report to work when rostered.

Shift work

Where one-day stoppages occur, it is sometimes difficult to determine if and when a shift worker who is not directly supervised is taking industrial action. It is probably best to assume in the case of a one-day strike that it operates from midnight. A careful check is necessary on the intentions of shift workers and what hours they actually work.

Industrial action short of a strike

The position regarding conditions of service benefits is less straightforward where industrial action short of a strike occurs. It will be up to the authority to decide how contractual benefits should be operated. A distinction, for example, could be made between conditions of service such as sick leave and maternity leave - where benefits cannot be postponed - and annual leave.

Pensions

As far as the Local Government Pension Scheme is concerned, absence on strike for a day or more will, subject to the following, not count as pensionable service. 

The employee can, however, buy back the amount of pension lost by choosing to pay extra contributions, known as Additional Pension Contributions (APCs). Payment may be by regular deductions from pay, a lump sum deducted from pay or a lump sum paid directly to the Pension Fund administering authority. Those members who are a year or less from their Normal Pension Age (or those members over their Normal Pension Age but under age 75) may only pay by means of a lump sum (either from pay or direct to the Pension Fund administering authority). If a member of the LGPS has pre 1 April 2014 membership of the Scheme and buys the entire lost pension then the period relating to the lost pension will be included when calculating the pension protections provided for such members when the LGPS moved from a final salary scheme to a career average (CARE) scheme on 1 April 2014 i.e. will count towards the Underpin calculation (which ensures older members are no worse off than if they had remained in the final salary scheme), Rule of 85 protections (for those who were in the Scheme on 30 September 2006) and when calculating the member's final pay for benefits relating to their pre 1 April 2014 membership.  

However, whether or not the employee pays APCs to buy back the pension lost during the strike period, the employee must continue to pay contributions under any pre-existing Additional Regular Contributions (ARCs), Additional Pension Contributions (APCs), Additional Survivor Benefit Contributions (ASBCs), added years or part-time buy-back contracts and can continue to make any Additional Voluntary Contribution (AVC) payments. For further information on the pensions implications of a strike day please see https://lgpsmember.org/.

There is no provision in the Teachers' Pension Scheme for teachers to buy back strike days. Further information can be found on the Teachers' Pensions website.

The Return to Work

The formal terms of the return to work are usually negotiated when the dispute is settled, but a written agreement cannot always reflect all the aspects of the employment relationship. In particular it will be important to restore as soon as possible the pre-existing industrial relations climate so the return to work can take place without any recriminations on either side. On the employer's side this generally means that an employee's job or career should not be prejudiced by the fact that he or she took industrial action. The authority will need to consider whether disciplinary warnings arising from misconduct during industrial action should be kept on file or deleted after a period of time.

Employees who have been dismissed and subsequently re-engaged should normally be re-appointed on the same terms and conditions, providing of course that their posts and previous terms and conditions are still in existence.

Although it may not be possible to cover every detail in a return to work agreement, the authority should try to seek formal reciprocal arrangements with local trade unions on the terms of the return to work agreement. As far as possible the trade union(s) should ensure that there is no recrimination or victimisation against colleagues who did not take part in the action.

In national disputes, the national employers' side will try to achieve such agreements, but in the final analysis it is what happens at local level that counts. It is only local authorities and local trade union branches that can really 'deliver' reciprocal agreements on the return to work. This is particularly the case where there has been a change in working practice arising from the dispute.