An introduction to industrial action – FAQs for employers

There is no general right to strike in the UK, but employees do have certain protections to take part in industrial action, including Article 11 of the European Convention on Human Rights, which covers the right to freedom of peaceful assembly and freedom of association. Other protections are offered under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Generally speaking, industrial action is where an employee declines to perform their duties in some way. This often involves either a strike, or action short of a strike. A strike is a stoppage of work for any period of time by a group of, or all, employees. Action short of a strike covers other organised action to apply pressure to an employer, and tends to include an overtime ban, an on-call ban, a ‘go-slow’, or work to rule.

Employers are advised to take advice if they are involved in a dispute with a unionised workforce.

What is protected industrial action?

Industrial action is protected when the union complies with the requirements set out under TULRCA, such as the notice and balloting requirements.

What does a union have to do to lawfully call a strike?

There are several detailed requirements under TULRCA, including providing notices with certain information to the employer and carrying out a secret and secure ballot. The union must make sure it complies with the legal requirements of TULRCA, or the industrial action may be unlawful. 

What can an employer do to challenge industrial action?

There are detailed provisions and requirements under TULRCA in terms of notice, balloting of members and other aspects of organising industrial action. If these provisions are not complied with, the protection afforded to a trade union and its members for taking part in industrial action can be lost. This will depend on the individual dispute, as each case is different, but if the requirements of TULRCA are not made out, it is possible to challenge planned industrial action. An employer may choose to prevent industrial action it considers unlawful by applying for a court injunction and/or making a claim for damages.

What about non-union members, or members of different unions? Can they take part in industrial action?

The law also protects those who are taking part in industrial action but are not members of a union. If an employee is a member of another union which has not authorised or supported the action, however, they will not be protected. Even if an employee is not a member of the union organising industrial action, they could still be encouraged not to cross picket lines. This could also impact your suppliers.

Can I withhold an employee's pay if they take part in a strike?

Employers do not generally need to pay employees who are on strike and refusing to work at all, as such action is usually a breach of the employee’s contract. Calculation of what pay is withheld will depend on the wording of the employee’s contract and the duration of the industrial action.

How are employees protected when taking part in industrial action?

The rules on protection for an employee taking part in industrial action are complex and will depend on the type of action involved. Generally speaking, employers should tread carefully if deciding to dismiss an employee for participating in strike action, but it will depend on the type of action and the reason for dismissal.

Employees may also be protected if they are subjected to a detriment short of dismissal because they are taking part in industrial action, although the position is not yet clear. The Supreme Court is due to hear a case in the coming months which should help to clarify this protection.

Can I just hire temporary or agency workers to cover work during industrial action?

In July 2022, the law was changed to allow employers to use agency or temporary workers to cover the duties normally performed by a striking worker. Following a successful legal challenge by a number of trade unions the changes were quashed in July 2023, the court deciding that the government had failed to properly consult about the changes.

An employer can recognise a union by coming to an agreement and deciding what they can consult on (such as employment terms and conditions or pay). Alternatively, if a union meets certain thresholds, they can apply for statutory recognition through the Central Arbitration Committee (CAC). The CAC can determine that the union is granted recognition in respect of pay, hours and holidays.

How do unions get recognised by employers?

An employer can recognise a union by coming to an agreement and deciding what they can consult on (such as employment terms and conditions or pay). Alternatively, if a union meets certain thresholds, they can apply for statutory recognition through the Central Arbitration Committee (CAC). The CAC can determine that the union is granted recognition in respect of pay, hours and holidays.

Does the union have to be recognised in order to call for industrial action?

A trade union does not have to be recognised for it to call on its members to take industrial action. However, the trade union, whether recognised or not, still needs to comply with TULRCA. 

Are there thresholds in terms of balloting to call industrial action?

There are strict requirements in terms of who can be balloted, the required turnout and the numbers voting in favour. It is important that unions only seek to ballot those who they intend to call upon to take industrial action and who are entitled to vote. There are additional requirements for some important public services.

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