Many University lecturers are taking industrial action this March (in response to a significant cut to their pension entitlement). We thought this would be a good time to look at some of the Employment Law ramifications of industrial action.
Strike action and retaliation
Breach of contract
Taking strike action is a breach of your employment contract and your employer does not have to pay you for the time you have declined to work.
However, providing it is a properly organised strike and members have been balloted and the employers notified within the time specified, then the employer cannot lawfully take retaliatory action against you.
If you are dismissed within 12 weeks of participating in an organised strike then you may have a claim for unfair dismissal, if the strike action was the reason for dismissal. If your employer subsequently breached its obligation to act in good faith, then, if that amounted to a repudiatory breach of your contract, you may be able claim constructive unfair dismissal.
An unorganised strike does not provide any protection against unfair dismissal.
The days not worked reduce your length of service, and this could potentially impact on the calculation of any redundancy pay, for example.
Whilst there does not seem to be any direct correlation between strike action and redundancies, if the employer suffered significant financial losses as a result of the strike action or as a consequence of any settlement reached, then it could conclude that money needed to be saved by reducing overheads, which could include reducing staff. Even if redundancies can be justified and a fair process appears to have been followed you may still be able to challenge your selection if there is evidence to support a claim for unfair selection for redundancy.
Constructive Unfair Dismissal
Every claim for constructive unfair dismissal is fact specific and separate legal advice should be taken in each case. As a general rule, once your employer has broken your contract by acting in bad faith you would normally need to take prompt action to avoid affirming the contract.
If you need some legal advice on this area or any other area of Employment Law, please call rhw Solicitors in Guildford on 01483 302000 and ask to speak with Darryn Harris or Nick Richardson or email email@example.com