Lawful industrial action

Trade unions only have statutory immunity if the industrial action is lawful. Statutory immunity means that trade unions and their members are protected from legal action in civil law. There’s no legal immunity in criminal law for strikers or organisers who break the law - for example, by intentionally damaging property or trespassing. When industrial action is lawful There must be: a trade dispute (a dispute between you and your workers about employment-related issues) a properly-conducted industrial action ballot a written notice of industrial action The union must send you: the notice of ballot no later than 7 days before it opens a sample of the voting materials at least 3 days before the ballot opens the written notice at least 10 days before any industrial action The industrial action must not: be secondary action - for example, action taken by workers whose employer is not involved in the trade dispute be in support of an employee dismissed for taking unofficial industrial action promote closed-shop practices (such as when employers agree to employ only union members) or enforce trade union membership against non-union firms involve unlawful picketing You can read more about: industrial action ballots and notice to employers in the code of practice industrial action and the law When civil proceedings can take place If the union does not follow these conditions, it does not have statutory immunity. This means that you and anyone else affected by the industrial action can take civil proceedings in the courts as long as all the following apply: an unlawful, unprotected act has happened or been threatened the action breaks a contract that you’re a party to, such as an employment contract you’ve suffered, or are likely to suffer, loss as a result

Strike pay and working records

You can ask your employees if they’re planning to strike, so that you can tell what effect the strike will have on your business. They do not have to tell you their plans. Deducting pay You do not have to pay employees who are on strike. You can only withhold pay for the period covering the strike action. If workers take action short of a strike, and refuse to carry out part of their contractual work, or go on strike and refuse to work part of a shift, this is called ‘partial performance’. If you refuse to accept partial performance, you must tell employees that: they should only attend work if they fulfil their contractual duties if they do not fulfil the terms of their employment contract, you do not have to pay them If you do accept partial performance, you must still pay employees for any work that they have done. How much pay to deduct during a strike You should only deduct the amount that the employee would have earned during the strike. How you work this out may depend on how they are paid (for example, hourly, weekly or monthly) and on the terms of their employment contract. You cannot deduct an employee’s pay if, for other reasons, they were not supposed to be working on the day of the strike. Effect on continuous employment and length of service If employees return to work after the strike, their continuous employment is not affected - they continue to be employed by you. This means that the terms and conditions of their employment contracts still apply during and after the strike. However, days when they were on strike do not count towards their total length of service - this may be important for working out things like statutory redundancy pay or pensions.

Picketing during strikes

During the strike, workers and union reps may stand outside the place of work to explain why they’re striking and try to persuade others to join the strike. This is called picketing. It’s only lawful if it’s: carried out near or at the strikers’ usual place of work (unless they are mobile workers or union reps for the workers involved) done peacefully, without abusive or threatening behaviour not breaking any criminal laws - for example, damaging property or obstructing roads You may be able to take legal action if picketing is unlawful .

If your business faces industrial action

Q: Non-union employees and strikes

You can ask non-striking employees to cover work during a strike, as long as: this is allowed by their employment contracts you do not discriminate against any employee directly or indirectly Non-union staff and striking If non-union members go on strike, they are protected from dismissal and have the same rights as union members, as long as the industrial action is lawful .

Overview

If there’s a workplace dispute at your business, you should try to resolve it informally or through an impartial third party (mediation, conciliation or arbitration).

Get advice on handling disputes and conflict in the workplace on the Acas (Advisory, Conciliation and Arbitration Service) website.

You could work with a trade union to solve a dispute as well as with non-union employee representatives. You can find out more in the Acas guide to non-union representation in the workplace.

If you cannot resolve a dispute, workers in a trade union may consider taking industrial action.

A trade union can only call for industrial action if:

at least 50% of members eligible to vote in the ballot have done so
a majority of those members eligible to vote in the ballot support it (the union has to decide which members it wants to ask to take industrial action)
they have provided at least 10 days’ written notice of the industrial action to the employer

Types of industrial action might include a strike or action short of a strike, for example not working overtime.

If workers go on strike, you do not have to pay them for the hours lost.

Using agency workers to provide cover during a strike

You cannot hire agency staff to provide temporary work cover during a strike.

Agency workers already in place as part of your normal business can carry on as usual.

Check the rules around non-union employees and strikes.

Dismissing workers who take industrial action

As an employer, you may face unfair dismissal claims if you dismiss:

employees for taking part in lawful industrial action (including after that action has stopped)
some employees for taking part in the action, but not others

Disadvantaging workers who take industrial action (detriment)

As an employer, you may face legal action if you disadvantage a worker by:

penalising them for taking industrial action (for example, by cutting their hours)
preventing or deterring them from taking industrial action

This is sometimes known as a ‘detriment claim’.

You can still take action that would disadvantage a worker (such as disciplinary action for misconduct), so long as the main purpose is not to penalise, prevent or deter industrial action.

If your main purpose when making decisions around industrial action is to manage its impact, a worker cannot claim detriment, even if they are disadvantaged by your decisions.

Example

You offer less overtime after industrial action for business reasons. This disadvantages a worker by reducing their hours. The worker cannot however claim detriment because the main purpose of reducing overtime was not to penalise, prevent or deter industrial action.

View a printable version of the whole guide

If your business faces industrial action

Overview

Using agency workers to provide cover during a strike

Dismissing workers who take industrial action

Disadvantaging workers who take industrial action (detriment)

Example

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If your business faces industrial action

Overview

Using agency workers to provide cover during a strike

Dismissing workers who take industrial action

Disadvantaging workers who take industrial action (detriment)

Example

Is this page useful?

Help us improve GOV.UK

Help us improve GOV.UK