Dismissals relating to industrial action
How to ensure that you dismiss an employee fairly for reasons relating to industrial action.
It is automatically unfair to dismiss workers for taking part in official industrial action:
- In the 12-week period from the day the industrial action starts.
- That lasts longer than 12 weeks - but only if you haven't taken reasonable steps to resolve the dispute. Only an industrial tribunal/arbitrator can decide whether or not you've taken the necessary steps to resolve the dispute.
Subject to some exceptions (see below), an employee dismissed while taking part in unofficial industrial action can't generally claim unfair dismissal.
For the difference between official and unofficial industrial action, see our guide on industrial disputes.
If you 'lock-out' employees taking industrial action, the days of the lock-out are not included in the calculation of the 12-week protected period. A lock-out is where you prevent employees from getting to their workplace, eg, by locking the doors to the premises.
Apart from this, subject to some exceptions (see below), an industrial tribunal/arbitrator can't hear a complaint of unfair dismissal from an employee dismissed while taking part in official industrial action as long as you have:
- dismissed all those who were taking part in the action on the same date that you dismissed the person complaining of unfair dismissal
- not offered re-engagement to any dismissed employee within three months of the dismissal date, without making the person complaining of unfair dismissal a similar offer
Exceptions
The exceptions are that a tribunal/arbitrator can hear a complaint of unfair dismissal from an employee dismissed while taking part in industrial action - either official or unofficial - if the main reason:
- was that the employee took certain specified types of action on health and safety grounds
- related to maternity/paternity/adoption/parental/shared parental/parental bereavement leave, pregnancy, or time off for a dependant
- was that the employee exercised their rights under the Working Time Regulations (Northern Ireland) 2016
- related to the right to request flexible working arrangements
- was that the employee had been summoned or took time off work for jury service
- was that the employee took certain specified types of action as an employee representative or as a candidate to become one, or took part in the election of such a representative
An industrial tribunal/arbitrator can also hear a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action if the reason or main reason for the dismissal was that the employee made a protected disclosure.