Dismissals of employees are possible if a strike goes ahead under certain circumstances. It s possible to dismiss and employee under the actions of;
- Lock-Out- this would be covered by the provisions of s.238(1)
- Unofficial Strikes- this would be covered by provisions of s.237
- Dismissal In Connection with industrial Action- this would be covered by provisions of s.238(2)
- Official Unprotected Industrial Action- this would be covered by provisions of s.238(2)
- Protected Industrial Action- this would be covered by provisions of s.238A
The only one in which there can certainly be a case of unfair dismissal is no.5 as a protected trade dispute is governed by s.238a which applies if the date of dismissal is in accordance to this section in other words, within the 12 weeks basic period under The Employment Relations Act 2004 and taking into account other factors such as lock-outs by the employer etc. Any dismissal in the time periods covered by this section is ultimately classified as unfair, with no exceptions to the rule. This claim of unfair dismissal has to be claimed with the 6 month period in accordance with the Employments Rights Act 1996. Under this section it also states that the employee would be classed as being unfairly dismissed if he had stopped taking part before the end of the official period yet was dismissed after the 12 week period. Unfair dismissal can also be claimed if the employee strikes longer than the 12 week period, if the employer has not taken realistic steps to overcome the dispute. To establish whether realistic steps have been taken by the employer, there will be 4 things taken into consideration as stated under s.238A;
- whether the employer or a union had complied with procedures established by any applicable collective or other agreement;
- whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;
- whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;
- whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.
Employees must also be treated equally, an employer can not pick and choose who to dismiss, If he did this could lead to a case being brought about through discrimination against the employees who were dismissed. Employees who have been part of a protected trade dispute cannot be forced to take redundancy under (TULR(C)A,ss152(1)-153), which states that it would be classed as unfair dismissal to select a person for redundancy trade union status/activities.
If an unfair dismissal claim is successful then there are a host of possibilities that might come from it. Compensation may be awarded and would be calculated by considering a number of things such as the length of employment, their age and their current pay to create a basic award. They may then also be given compensation that is decided entirely by the tribunal taking into account the loss and suffering by the claimant as well as future loss such as pension schemes etc. and may be anything up to the amount of £68,400. Alternatively if the case is still on going and if the employee agrees, the tribunal may also order the employer to re-instate the employee, refusal to do so would incur further compensation to be paid.
In the current economic climate the right to strike may not actually be the best means of protection. The struggling economy has companies running on very fine margins, and thus strike action could in fact cause long term trouble to the future of the company, and therefore effect the safety of the employees jobs. The aviation industry is a massively competitive market, many airline companies are out there all competing for the same passengers, so in relation to the British Airways (BA) proposed strike in December 2009 which was over ruled by a high court due to voting irregularities , possibly was a positive for the employees. The monetary loss suffered by BA would have been devastating to the company, and therefore this proposed strike to try and help employees would more than likely have had the opposite effect. In reality, as BA could not afford this loss, there is the argument that companies will have to give in to all demands of the workers just to keep the company up and running, and therefore striking could be seen as a bullying tactic of employees to get their own way. Therefore, alternative ideas are needed that will allow unions to carry out there protection of employees whilst making sure that the company can survive in harsh economic times. Instead of going on strike a compromise could be made in the way of action short of a strike, this would slow down the efficiency of the company, however would not have such large negative consequences as a strike may have, although the employees would still be voicing there opinion. Possibly a change in legislation to accommodate this by scrapping all forms of strikes from protected trade disputes and therefore limiting unions to these less extreme form of protests.
Question 2
With reference to the above, discuss this question:
TWU (a trade union) has threatened industrial action against a textile company, the multinational PBC plc; they want to protest against the fact that at PBC they have got in place a supply agreement with Yoko plc, a multinational in the Far East, which notoriously exploits children aged less than 12 in their factories. These children are paid £ 10 per month.
TWU threatens to call a strike, unless PBC decides to terminate the supply agreement with Yoko plc and instead utilise a consortium sponsored by TWU.
PBC plc argues that the strike is not legitimate.
Advise TWU.
This would be dependant on what was written into their contract at the beginning of your deal. If there is no mention of who PBC use as suppliers in their contract then it cannot be argued by you that they have to stop using them, you are trying to renegotiate terms which is acceptable however, as there is only one possible option with the threat of termination of the contract it is unrealistic that you will be able to call a strike as you are threatening to do. A trade dispute cannot be brought about by the forced action, which is not included in the original terms of the employment. A similar situation to this would be the case involving the BBC vs Hearn (1978) In this case the there was a Football Cup Final which the BBC were broadcasting via satellite to a number of other countries across the world including South Africa. A couple of weeks before the broadcast the Association of Broadcasting Staff (ABS) said that because of the current problem of the Apartheid and racism in South Africa, they wanted to ask technical members to ensure that there would be no overseas transmission of the broadcast, because of this unless they could be assured that it would not be transmitted in South Africa. If this has gone ahead this would have lead to a breach in contract of employment between those employees threatening this action and the BBC. This led to the BBC requesting an injunction to stop anyone from stopping the broadcasting to go ahead. When this first went to court the judge involved claimed that this action was a protected action under the trade union legislation and would not give such an injunction. However the BBC were allowed to take the case to the court of appeal on the basis that firstly ABS had not tried to negotiate the terms and conditions but purely threaten to stop the broadcast which did not count as a trade dispute under the meaning given by s.29(1) of the Trade Union and Labour Relations Act 1974.) It was held that there was no defence that could be created by ABS and thus for convenience it went in favour of the BBC they were granted the interlocutory injunction as appealed for.
Although you have attempted to negotiate, it will not be deemed as satisfactory as you have only given them one option, so possibly if you add in more options then there may be a compromise in which you can both come to. As it stands, it is likely that an injunction will be granted to halt your strike actions against Yoko Plc. Another case which backs up my worries about having an injunction brought about against your strike would be that of
University College London Hospitals NHS Trust v Unison [1999] ICR 204
University College entered into a contract with a contractor for the purposes of building a hospital. The Union opposed this contractor and tried to force the claimant to use a consortium preferred by them instead. This was denied by the NHS trust and the union threatened to strike, however it was held that the terms and conditions disputed were not relating to the effected employer and an injunction was granted, this applies to you in the sense that the contract disputes are with a prospective employer and not the current employer. Therefore I believe that as it stands if your terms and conditions do not state anything to do with suppliers then unless you provide more alternatives that you should call of the strike, as it is not a legitimate dispute.
Pitt, G. (2011). Employment Law. 8th Edition. Sweet & Maxwell. Pp352