Summer 2022 has seen a resurgence in trade union activity, and employees from a variety of sectors have voted in favour of or are taking in industrial action parts largely related to the cost-of-living crisis. 

What is Industrial Action?

Industrial action is any action taken by employees working in concert with each other to disrupt production in order to settle a dispute with their employer – usually to force employers into improving working conditions and/or pay. It is considered a last resort when consultation between employee representatives and the employer has failed.

Typically employees involved in industrial action will go on strike, as seen recently with railway workers. However, this is not the only form of industrial action. In May 2022, for example, employees at UK ink manufacturer Sun Chemical voted in favour of refusing to work the overtime necessary to meet production demands in addition to going on strike, causing printing issues for their clients.

Only official industrial action is legally protected. Official action is that which has been lawfully organised and endorsed by a trade union and concerns a valid dispute between employers and employees. If industrial action is held to be unlawful, the trade union could be subject to an injunction or damages. From 21 July 2022, the maximum damages that a court can award against a trade union is £1 million.

Who can take part in industrial action?

Whilst employees taking part in official industrial action are usually represented by a trade union, non-union members can also take part alongside union member colleagues and will receive the same protections.  

Why are trades Union members currently voting for industrial action?

As a result of the economic difficulties caused by the pandemic, many businesses implemented pay freezes in 2020 and 2021. Supply chain issues caused by the war in Ukraine and inflation rises have seen the rise in the cost of living increase disproportionately to employee's wages, meaning that employees have had their pay cut in real terms.

In many cases, talks between trade unions and employers have broken down to a point where employee members have felt that they have no choice but to commence industrial action.

Industrial Action and Employees

What can employers do to cope with labour shortages during a strike?

Employers may reassign existing staff to perform the roles of those on strike, directly hire replacements on a temporary basis or outsource work to third parties. However, the law, for the time being, prevents agencies from supplying temporary workers to perform the duties of employees who are taking part in official industrial action and agency workers may only be engaged after the strike has finished to clear any backlog of work.

In response to the current strikes taking place, the Government is in the process of passing legislation to enable businesses to engage temporary agency staff during industrial action. The Government has stated that it would be the employer's responsibility to engage agency workers with the necessary skills and qualifications to meet health and safety obligations.

What should an employee be paid during a strike?

As an employee is usually refusing to work, industrial action would put the employee in breach of their contract of employment, and the employer will generally not be required to pay the employee during any period of action. An employee who has taken part in industrial action will not be able to bring a claim for unlawful deduction of wages in the Employment Tribunal.

Can employees be dismissed for taking part in industrial action?

Employees may not be dismissed in the 12 weeks following participation in any industrial action that a trade union has lawfully organised, and any dismissal would be automatically unfair (regardless of the employee's length of service). After 12 weeks, employees can potentially be fairly dismissed if they have taken industrial action and the employer has tried to settle the dispute by, for example, resuming negotiations.

If the industrial action has not been lawfully organised and endorsed by a trade union, it will be classed as unofficial. Employers will be immune from an unfair dismissal claim if it shows that the employee was participating in unofficial action at the time of dismissal.

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If you have any more questions or would like more information regarding industrial action, you can contact our Employment Team below.

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