If we go on strike, are we protected from dismissal?
It depends on whether the strike was a form of 'protected industrial action'. Although a strike, or other form of industrial action, is a breach of the contract of employment, which would normally give the employer the right to dismiss, the dismissal would be unfair if the action was 'protected'.
Industrial action is protected if it has been called lawfully, meaning there has been a ballot that complied with statutory procedures, notice was given to the employer, and so on; and where the strike is about a work dispute with your own employer. Workers who take 'unofficial' industrial action or engage in 'wildcat' strikes are not protected from dismissal.
Check with your union if you are concerned about the legality of your planned industrial action.
Dismissal when taking part in protected industrial action is unfair if:
- other employees taking part in the action were not dismissed;
- dismissal occurred during the first 12 weeks of the lawful industrial action (this limit is set to be abolished by the Employment Rights Bill);
- you stopped taking part in the industrial action during the 12-week period and were later dismissed for taking part in the action during that 12-week period; or
- dismissal occurred more than 12 weeks after the start of the action and your employer has not reasonably attempted to use a procedure for settling the dispute (such as conciliation through Acas).
If employees are locked out (prevented from returning to work) during the 12-week period, it will be extended by one day for every day that the employee was locked out.
If you are in this position, take legal advice from a union rep as soon as possible. Deadlines for employment tribunals are extremely short.