3. Your employment rights during industrial action

You have the right to take industrial action and you can’t be legally forced to stay at, or go back to, work (unless a ballot wasn’t organised properly).

If you take industrial action, you’ll probably have broken (be ‘in breach of’) your employment contract and your employer:

  • is unlikely to pay for the work you didn’t do when you took industrial action
  • can sue you for breaking your contract (this doesn’t happen often)

Taking industrial action doesn’t usually mean that your employer will say you’ve broken your period of continuous employment with them. This begins when you start working for your employer and ends on the day your employer uses to calculate your length of service.

However, if you take industrial action, your employer will reduce your length of service with them by the number of days you were on strike. This is important when working out your pension and things like statutory redundancy pay.

Dismissal for industrial action

You can’t be dismissed for industrial action if:

  • it’s called as a result of a properly organised ballot
  • it’s about a trade dispute between workers and their employer (eg about your terms and conditions)
  • a detailed notice about the industrial action (which is legally required) has been given to the employer at least 7 days before it begins

You can claim unfair dismissal at an employment tribunal if you’re dismissed for taking industrial action at any time within the 12 weeks after the action began.

After 12 weeks, you can be dismissed if you take industrial action and your employer has tried to settle the dispute. For example, your employer may bring in advisers from Acas to help find a solution.

When you may be dismissed

You could be dismissed for taking part in industrial action if:

  • the union hasn’t held a properly organised ballot
  • the union hasn’t given the employer the correct notice for balloting members or taking action
  • the union hasn’t called its members to take action because they think the dispute is settled or action is called by someone who doesn’t have the authority to do so
  • it’s in support of workers taking action against another employer (otherwise known as ‘sympathy’ or ‘secondary’ action)
  • it’s in support of only employing union members (otherwise known as a ‘closed shop’)
  • it breaks any other parts of industrial action law

If you take part in industrial action that breaks the regulations and you’re dismissed, you can’t usually claim unfair dismissal if all employees taking part are dismissed as well.

Unofficial industrial action

This is action that isn’t organised by a trade union or isn’t supported by the union you’re a member of.

Industrial action by non-union members

Non-union members who take part in legal, official industrial action have the same rights as union members not to be dismissed as a result of taking action.

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