Wildcat strikes have been reported widely in the media this year, particularly the protests against Total UK's use of foreign labour at the Lindsey oil refinery in Lincolnshire. With the current economic climate, these so-called wildcat strikes are likely to rear their heads again and it is important that employers know how best to deal with them.
A wildcat strike is another name for a strike that amounts to "unofficial industrial action" for the purposes of s237(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Simply, industrial action will be classed as unofficial if the union whose members are taking part in the action has not endorsed or authorised it, or has repudiated such endorsement or authorisation.
Any employees dismissed while taking part in unofficial industrial action – not supported by the union – cannot normally claim unfair dismissal (s237(1), TULRCA).
It is therefore vital for employers to be able to ascertain whether the industrial action is unofficial, so that they can decide on the appropriate course of action and, in particular, if there are grounds upon which they can challenge the industrial action. If industrial action has been lawfully organised (and is therefore 'protected'), employers are more limited as to the preventative steps they can take.
When is a strike protected? To be protected, the industrial action must satisfy at least the following key requirements:
- The action must be in "contemplation or furtherance of a trade dispute" (which includes disputes in relation to terms and conditions of employment)
- The union must conduct a valid secret postal ballot with the majority voting in favour of the industrial action
- The union must send a valid ballot notice* to the employer at least seven days before the start of the ballot, and a sample of the voting paper* to the employer no later than three days before the start of the ballot
- The union must serve on the employer a valid notice* of industrial action at least seven days before the start of the industrial action, only inducing those members to participate in the industrial action who were given the right to vote in the ballot
- The industrial action must start within four weeks of the closing date of the ballot.
(* To be valid, these documents all need to meet certain minimum requirements.)
If an employer believes that one or more of the above steps has not been complied with then it should keep any evidence of this non-compliance as it could be used in a potential challenge to the industrial action.
There are a number of options available to employers to use against wildcat strikers. Even if the industrial action is official (ie, it is supported by the trade union) but not protected, an employer can seek an interim injunction in the High Court to prevent the industrial action from taking place, or damages from the trade union if the industrial action has already taken place.
If an employee chooses to strike, an employer can withhold part of the employee's pay. The amount of pay that can be withheld can sometimes be complicated and dependant upon, for example, whether the employee is salaried, hourly paid or a piece worker.
In addition, the employer may take disciplinary action against the employee. While the employee, by taking industrial action, may be in breach of contract and could potentially be dismissed for gross misconduct, an employer has to be careful to ensure that, in dismissing an employee, it doesn't put itself at risk of unfair dismissal claims.
So, there are a number of general rules for handling wildcat strikes. Firstly, where the industrial action constitutes a wildcat strike – unofficial and unprotected – an employer can cherry pick which of the employees participating in the industrial action to dismiss and can still be immune from unfair dismissal claims.
However, where industrial action is official but not protected, an employee participating in the action will have no right to claim unfair dismissal, provided the employer dismisses all of the employees participating in the industrial action.
Finally, where the industrial action is protected and official, the employer will be at risk of unfair dismissal claims if the principal reason for dismissal was that the employee took protected industrial action and if the employer dismissed the employee
- at any point within the 12-week period after the employee began industrial action, or
- after this 12-week period, if the employee ceased industrial action on or before the end of the 12-week period, or
- after this 12-week period, if the employee continued to participate in the industrial action, and the employer had not taken reasonable steps to resolve the dispute.
Sara Sawicki is a partner in the employment group at Pinsent Masons
