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R ea d wHoovvrkfsohrcoeudIdeecimdepslotyoetraskreesinpdounsdthifaltheir action? Jonathan Exten-Wright reports.

6th December 2007
Page 38
Page 38, 6th December 2007 — R ea d wHoovvrkfsohrcoeudIdeecimdepslotyoetraskreesinpdounsdthifaltheir action? Jonathan Exten-Wright reports.
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Which of the following most accurately describes the problem?

for action

Many employers arc confused about industrial action — what exactly is it? Does it break a contract of employment? And if so what steps are open to them to deal with employees who take part?

There is no statutory definition of industrial action, but in general any concerted action which is taken to put pressure on an employer could be defined as industrial action.

There are two major types of industrial action: a strike, and action short of a strike, such as an overtime ban,`work to rule', or picketing.

Because strike action involves withdrawing labour it will always be a breach of contract. Other forms of industrial action will usually constitute an express breach of contract hut may also be a breach of the implied duty of good faith or fidelity. For this reason a 'work to rule' will usually he a breach of contract.

Employees do not have any immunity against liability for breach of their employment contracts However, potential remedies against employees are very limited as the courts will not order employees back to work or order an injunction. Damages are unlikely to he an effective remedy due to the difficulties in establishing loss caused by any one individual. and the unlikelihood of the employee being able to pay.That said, however, the employer may be able to withhold all or part of th e employees' pay, and dismiss him or her with or without notice.

Withholding pay

If employees are on strike (ie refusing to work at all), the employer can withhold pay for the periods when they are not working.

Where the employees are participating in industrial action which is a breach of contract hut short of a strike, the employer can demand that the employees comply with their contracts in full or not be paid until they are prepared to comply. The other option is to accept partial performance and continue to pay the employees There is some authority to suggest that the employer may make a deduction from wages in these circumstances. However, an appropriate partial deduction might be difficult to quantify particularly in the case of a work to rule.

For the purposes of the right to claim unfair dismissal, industrial action is divided into two categories: unofficial (employees taking part are members of a union which has not authorised or endorsed the action), and other action.

Other industrial action is then subdivided into protected industrial action and nonprotected industrial action. Protected industrial action is action in contemplation or furtherance of a trade dispute" which is supported by a properly conducted ballot.

Dismissal during unofficial action

If an employee is dismissed while taking part in unofficial industrial action, he or she has no right to claim unfair dismissal unless the principal reason for the dismissal was specifically prohibited, such as health and safetv, whistleblowing, working time,flexible working or time off for dependants, Me reason for dismissal is irrelevant unless it is for one of these prohibited reasons.

The employer must check that the employee was in fact taking part in the industrial action and that at the time of the dismissal it was unofficial action for that employee.

Dismissal during protected action

If the employee was not taking part in unofficial action at the time of dismissal, the question is whether the reason or principal reason for the dismissal was that the employee took part in protected industrial action. If so, the dismissal will automatically be unfair if the dismissal takes place within a certain time frame (generally within 12 weeks of when the employee first took part in the action). In these circumstances, the employee can claim unfair dismissal even if he or she does not have one year of continuous employment.

Dismissal during official (but not protected) action

II the employee was engaged in industrial action which was neither unofficial nor protected, then dismissal falls into the residual category. The employee potentially has a right to claim unfair dismissal but an Employment Tribunal has no jurisdiction to entertain the claim unless the employer improperly discriminates by treating employees differently The employer is required to dismiss all employees who take part in the action (and then either not offer re-engagement to any of them for three months or re-engage them all). If an employer selectively dismisses (or re-engages) employees in these circumstances they will be able to pursue a claim for unfair dismissal in the normal way but do not require one year's service. •

Tags

Organisations: Employment Tribunal

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