What rights do I have when striking?

The recent strike action across various public sectors in the UK has resulted in an increased number of employees questioning their entitlement to strike. Strike action can be disruptive to employers but it is important that employees who are entitled to strike are not prevented from doing so. Equally, employees who strike must do so legally.

Do I have a right to strike?

There is no legal right to strike in the UK. However, strike action is legal where it has been properly organised by a trade union and is lawful. This is governed by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) which protects unions from civil legal action in response to lawful strikes.

A strike will be lawful if the following requirements are satisfied:

• The union has raised a dispute on behalf of its members;
• Union members vote via a properly organised ballot; and
• The union provides employers with a minimum of 14 days’ notice when planning strike action.

Does the law protect me when striking?

Lawful strikes that are organised by trade unions provide protection to participating employees. Although employees will likely breach their employment contract while striking as they are not providing their contractual services, an employer cannot require employees to stay at work or return to work during strike action. 

Moreover, going on strike will not usually result in an employee’s continuous service being broken, but an employer may decide to reduce their employees’ continuous service by the amount of days they were on strike.

Am I entitled to pay while striking?

Employees who strike are not entitled to be paid for their unworked hours. Employers are entitled to deduct such sums from an employee’s pay but cannot deduct more than one fifth of an employee’s weekly pay for a day’s strike action. Pay deducted from part-time employees should be done on a pro-rata basis.

Can I be dismissed for striking?

Employees cannot be dismissed for participating in a strike if:

• It has been called following a properly organised ballot;
• The strike is about a dispute between themselves and their employer; and
• The required notice was provided to their employer.

Protection from dismissal is available for up to twelve weeks after strike action began. An employer who dismisses their employee during that period risks facing unfair dismissal claims at an employment tribunal.

However, employees may be dismissed if:

• The union fails to satisfy the requirements for holding a lawful strike;
• The union has not asked its members to strike;
• A strike was called by someone without authority to do so;
• They have taken part in ‘secondary action’ (action in support of individuals striking against a different employer);
• They continue to strike despite their employer attempting to settle the dispute; or
• They break other strike-related laws.

Can I strike if I am not a member of a trade union?

Employees who are not members of a trade union are entitled to strike and are protected as outlined above so long as the strike is properly organised and lawful.

Unofficial strikes

Employees who participate in a strike that lacks trade union involvement are not afforded the above protection. Strikes of this nature are known as a ‘wildcat strikes’ and those taking part are at risk of dismissal.

The Strikes (Minimum Service Levels) Bill

In response to the increased strike action, in January 2023 the Government introduced the Strikes (Minimum Service Levels) Bill to ensure the safety of the public and their access to public services during strike action. This would apply in England, Scotland and Wales.

If enacted, the Secretary of State for Business, Energy and Industrial Strategy would have the power to regulate minimum service levels during strike action in the following sectors:

• Health;
• Education;
• Fire and rescue;
• Transport;
• Nuclear decommissioning; and
• Border security.

Employers would need to identify employees who must work during a strike to ensure minimum service levels are satisfied and notify the relevant trade union/s via a work notice. Simultaneously, trade unions would need to take ‘reasonable steps’ to ensure that members identified in a work notice comply.

If a union failed to take reasonable steps they would lose their protection under TULRCA and may face civil legal action. Additionally, individuals who strike despite identification would no longer be protected from automatic unfair dismissal.

Conclusion

The main points employers and employees should consider as to strike action are:

Employers

• Complying with TULRCA;
• Allowing employees to participate in lawful strikes; and
• If enacted, complying with future legislation on striking.

Employees

• Ensuring a strike is lawful before participating;
• Understanding pay entitlement; and
• If enacted, complying with future legislation on striking.