Can I suspend an employee who participates in industrial action?

Employees participating in industrial action can have a significant impact upon a workplace and employers may ask what their rights are in terms of taking action against employees for this reason.

This article explores the different types of industrial action and both the legal and practical considerations around whether an employer can suspend employees who participate in industrial action.

What is industrial action?

Industrial action is when employees take action against their employer to enforce demands or protest against working conditions, pay or other employment terms. Industrial action is usually organised by a trade union. Examples of industrial action include:

• Striking: This is when employees take action by refusing to work.
• Picketing: This is when employees and trade union representatives stand outside a workplace to tell people why they are striking.
• Action short of a strike: This may occur where an employee refuses to do a specific task or part of the job, they refuse to do work that is optional in their contract, or they deliberately slow down their work.

What type of industrial action is protected by industrial action law?

Under the Trade Union and Labour Relation (Consolidation) Act 1992 (TULRCA), industrial action is official and generally protected if it meets certain legal requirements, which include:

• Balloting: The industrial action must be supported by a properly conducted ballot among members of the trade union.
• Notice: Employers must be given a minimum of seven days’ notice of the industrial action.
• Trade Dispute: The action must be in furtherance of a legitimate trade dispute, which includes matters like pay, terms and conditions, and health and safety.

If the industrial action does not meet the legal requirements outlined above, it is considered to be unofficial action. Unofficial industrial action is when either a trade union takes action without following the above legal rules or employees take action that is not authorised by a trade union. If employees take unofficial action, they are not protected by industrial action law. However, their usual employment rights will remain in force.

What law is in place which protects employees who participate in industrial action?

Employers should not cause detriment to anyone who takes part in official industrial action. Anyone who is legally classed as an employee is protected by law from unfair dismissal if they take part in official industrial action. Additionally, if an employee is dismissed for going on strike for 12 weeks or less, it is an automatic unfair dismissal.

Under section 146 of the TULRCA, it is “unlawful for an employer to subject a worker to a disadvantage or detriment short of dismissal for the sole or main purpose of preventing or deterring them from taking part in the activity of an independent trade union at an appropriate time or penalising them for doing so”.

However, in the recent case of Mercer v Alternative Future Group 2024, the Supreme Court determined that section 146 of the TULRCA does not provide employees with protection from action short of dismissal if they participate in industrial action, and that this section is incompatible with Article 11 of the European Convention of Human Rights.

While the declaration of incompatibility has no bearing on the legality or functioning of section 146 of the TULRCA, it will force the government to amend the law. Additionally, employers should take this ruling into consideration before taking any action that does not involve dismissal in retaliation for industrial action.

In cases of unofficial industrial action, employers have more scope to take disciplinary action, including suspension. However, even in these cases, employers should exercise caution and ensure that any action taken in consequence of unofficial industrial action is proportionate and justified, to avoid potential claims of unfair treatment or discrimination.

What considerations should employers make?

While the legal framework provides a basis for decision-making, practical considerations are equally important.

Before resorting to suspension, employers should explore all avenues of communication and negotiation with the employees. This may be achieved by engaging with employee representatives and unions who can often help resolve disputes, without escalating to suspension or other disciplinary action.

Additionally, suspending employees who are involved in industrial action may significantly impact employee morale and relations. Employers should weigh up the potential benefits of suspension against the possible negative impact on the workplace environment.

Employers must also ensure that any disciplinary action, including suspension, is applied to all employees consistently and fairly. Inconsistent or discriminatory practices may lead to claims of unfair dismissal or discrimination.

Conclusion

Suspending an employee who participates in industrial action is a complex issue that requires careful consideration. Whilst there may be circumstances where suspension is legally permissible, it is essential for employers to proceed with caution and consider alternative approaches to conflict resolution. By understanding the legal framework and weighing up the practical implications, employers can make informed decisions that balance their operational needs with the rights and well-being of their employees.

If you have any questions about taking disciplinary action against an employee for partaking in industrial action, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.