When can employees lawfully participate in industrial action and how can employers prevent it arising?

In the news

Last month the Irish High Court granted Ryanair an injunction preventing a planned 48-hour strike by pilots based in Ireland, halting action from 180 members of the Irish Air Line Pilots Association (Ialpa), as the required processes were not followed. In contrast and on the same day, the British High Court ruled against Ryanair and decided that British pilots represented by the British Airline Pilots Association (Balpa) could continue their planned 48 hour strike as this action was lawful.

Types of industrial action

Industrial action usually arises when a work dispute cannot be resolved through negotiation. There are different types of industrial action depending on how it has been organised:

  1. Official and protected industrial action: formally backed by a trade union and lawfully organised.
  2. Official and unprotected industrial action: formally backed by trade union but unlawfully organised.
  3. Unofficial industrial action: has not been formally backed by a trade union.

Employees will usually only be protected against dismissal in the first scenario and the trade union will also be immune from any action by the employer. In the second and third scenarios, employees have a higher risk of being dismissed.

When will industrial action be lawfully organised and therefore ‘protected’?

The employer's primary remedy is to apply to the High Court for an interim injunction to prevent industrial action from taking place. To secure an injunction, the employer must show that the industrial action is unofficial and unprotected. Before contemplating such High Court action, employers must therefore determine if the industrial action satisfies the following requirements:

  1. It must be in contemplation or furtherance of a trade dispute i.e. a workplace dispute relating to certain prescribed issues covered in legislation, such as terms and conditions of employment, working conditions, disciplinary action and so on.
  2. The union must have the majority support of a properly organised ballot and have complied with a number of strict procedural requirements.
  3. The union must serve a valid notice of industrial action on the employer at least fourteen days before the start of the industrial action.

In addition the above requirements, the industrial action must not:

  1. Be a secondary action i.e. taken by workers whose employer is not involved in the dispute.
  2. Be taken for a prohibited purpose such as be in support of an employee dismissed for taking unofficial industrial action or to require the employer to employ only union members.
  3. Involve unlawful picketing

For further detail on the grounds for challenging industrial action please see article from Stone King’s Dr John McMullen.

When can employees lawfully participate in industrial action and how can employers prevent it arising in the first place?

To avoid workplace conflicts escalating into industrial action, employers should:

  • Ensure they fully understand the nature of any workplace disputes and determine if there is any common ground or concessions that can be offered.
  • Make full use of workplace disputes procedures, such as negotiating with the union(s) and employees and ensure the appropriate staff are trained for dealing with industrial action.
  • Consider using alternative dispute resolution (ADR) and enlist a third party to help resolve the dispute such as ACAS.
  • Communicate with employees and encourage them to oppose any strike action. Employers should be measured, conciliatory and stress the positives of their position.
  • Consider agreeing a collective agreement between unions with a ‘no industrial action’ provision; although these are not usually legally enforceable it may help in obtaining an injunction in the future.

Legal 500 logo

Investors in People logo

UK Chambers logo

Best Companies - One to watch logo