Executive summary - industrial action guide

Managing the threat of industrial action

There cannot be a 'one-size-fits-all' response to industrial action but employers should consider their response within a strategic framework that embraces the following key issues:

• Assessing the scale of the problem
• Dispute resolution
• Contingency planning
• Communications.

In particular, employers should identify who is likely to take part in the dispute and the effect it will have on service delivery and the performance of any statutory duties. Based on this assessment, employers will be able to calculate the cost of the dispute and establish a fallback position upon which a settlement could be reached. It is normally important to try and reach an amicable settlement in the early stages of a dispute, before the wider industrial relations climate is damaged.

If a resolution is not possible, employers should draw up contingency plans that, among other objectives, will maintain the provision of essential services wherever possible. Employers can achieve this by reallocating the work normally carried out by staff taking part in the dispute to:

• staff not involved in the dispute
• other groups of staff
• temporary staff.

An effective communication strategy is an essential component in managing an industrial dispute. It should open clear channels of communication to key managerial personnel, members, trade unions and employees and provide an effective forum for the dissemination of information throughout the dispute.

The law and trade disputes

Trade unions are afforded limited immunity from liability for their actions in organising industrial action if they comply with a series of legal requirements, including:

• the action must be official.
• the action must be taken in contemplation or furtherance of a trade dispute.
• it must be between workers and their current (or former) employer.
• must not involve secondary action.
• must be wholly or mainly related to a list of specified matters, such as the terms and conditions of employment or dismissals (including redundancies).

If the trade union does not have immunity, employers can apply to the courts to prevent the action starting, or continuing, and to seek damages for loss. In practice, employers are advised to consider the potential damage to the industrial relations climate before seeking redress in law.

Action against individual employees

An individual who takes part in industrial action is likely to be in breach of their employment contract, and employers will therefore be able to take some action in response to that breach.

Although there is no legal definition of industrial action, caselaw has established that

• industrial action must be concerted action against the employer's interests. It does not, therefore, usually cover action taken by an individual
• it must be taken in order to put pressure on the employer in an attempt to achieve some objective
• it will not necessarily involve a breach of contract. For instance, a ban on voluntary overtime has been held to constitute industrial action.

As a basic guide, employees will probably be taking part in industrial action if they:

• collectively withdraw their labour
• refuse to undertake some of their duties
• refuse to carry out reasonable instructions
• take part in a sit-in, go-slow or work to rule
• take part in picketing.

Once the employer has established that the individual is in breach of their contract, they have a range of options, including:

• pay deductions
• suing for damages
• disciplinary action
• suspension
• dismissal (although employers should note the protections against dismissal which may apply)
• lock out.

However, in normal circumstances, the most appropriate response is to make an appropriate deduction from pay. In general, caselaw has established the following principles:

• an employee taking strike action has no entitlement to pay during the periods in which the action occurs
• an employee taking industrial action short of a strike in breach of their contract will have no entitlement to any pay if the employer decides to refuse to accept the partial performance of the contract
• where the employer allows an employee to continue working in those circumstances, the employer may make a deduction from their pay
• where pay deductions are made, these should at all times be reasonable (i.e. a reasonable reflection of the work lost/damages caused).

Pay deductions made as a response to employees taking part in strike action or industrial action short of a strike are excluded from the unlawful deduction of wages provisions in the Employment Rights Act 1996.

Effect of industrial action on statutory and contractual employment rights

Taking part in industrial action can have an effect on an individual's statutory and contractual employment rights.

Although taking part in a strike does not necessarily break an individual's continuity of employment, any time spent on strike will not count towards the qualifying period for certain statutory rights, such as qualifying for a redundancy payment or presenting a claim of unfair dismissal. In some circumstances, taking part in a strike will actually prevent an otherwise eligible employee from enjoying certain statutory rights.

In particular, employees are only protected from unfair dismissal if they take part in 'protected' industrial action, which requires strict adherence to certain legal requirements. However, if the action is 'protected' an employee dismissed for taking part in that action shall be regarded as unfairly dismissed. For action which commenced before 18 February 2026 that unfair dismissal protection only applied for a limited period, which was normally 12 weeks from when the action started. For further information see our guide – Effect of industrial action on statutory and contractual employment rights

Industrial action ballots and Notices to Employers

The law in this area is complex and employers should refer to our guide – Industrial action ballots and notice to employers for the details. Some of the main requirements though are set out below.

The law requires that there is a ballot of employees in accordance with strict legal requirements, before industrial action is called for or endorsed. Only where such a ballot produces a majority in favour of industrial action and at least 50 per cent of those eligible to vote have voted will the action be lawful (the 50 per cent requirement is expected to be removed during 2026). Further, for ballots of employees in important public services which opened before 18 February 2026, at least 40 per cent of those eligible to vote must have voted to support the action. The 40 percent requirement no longer applies to ballots which open on or after that date (opened means the date the first ballot paper is sent out).

Legislation in this area is supplemented by the statutory Code of Practice: Industrial action ballots and notice to employers updated in March 2026 which, although without standalone legal force, can be taken into account in any court proceedings.

The main legal requirements are that:

• all and only those workers who are going to be called upon to take industrial action must be included in the ballot
• the trade union must provide the employer(s) with at least seven days' notice that they intend to hold a ballot for industrial action. The notice must provide details of the categories of employee and the numbers involved.
• the ballot paper must meet certain requirements, and a sample must be provided to the employer.

The trade union is also under a statutory duty to inform the employer of the result of the ballot as soon as is reasonably practicable after it closes and it must give at least ten days notice before beginning any industrial action (for notices received by the employer before 18 February 2026 the notice requirement was 14 days, or seven if the employer agreed). The notice must:

• describe the employees who will take part in the action
• state whether the action will be continuous or discontinuous
• where it is to be continuous, the date on which it will start must be specified
• where it is to be discontinuous, the intended dates on which it will occur must be given.

For ballots that opened on or after 1 March 2017 and before 18 February 2026 there is a limit of six months to the validity of the ballot, beginning from when the ballot closed. This can be extended to nine months with the agreement of the employer. For ballots which opened on or after 18 February 2026 the ballot is valid for 12 months.

Picketing

For those taking part to retain immunity from legal proceedings, the picketing must be in contemplation or furtherance of a trade dispute and consist only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.

Resolution of dispute

Once the dispute is resolved, employers should negotiate a 'return to work' agreement that will normally seek to restore good industrial relations as soon as possible and avoid recriminations against individuals