Industrial action – your rights as a striking employee

The longest ever period of industrial action by junior doctors in the NHS has set off alarms in trusts nationwide which are struggling to meet staffing requirements.

With some trusts at the point of asking the British Medical Association (BMA) to allow some junior doctors to return to work to make up the shortfall, striking workers may be left wondering what their rights are during stints of industrial action.

Agreeing to a strike

Workers in the UK have the right to participate in industrial action if negotiations have failed to resolve a dispute with their employer.

To arrange strike action, the relevant trade union must call a ballot and receive support from the majority of its members. Afterwards, the union must information all members entitled to vote – and the employer – what the outcome was.

Even if your union asks you to take part in industrial action, you do not have to and you cannot be disciplined or expelled from your trade union if you refuse to participate.

Your union must provide a detailed notice of industrial action to your employer at least seven days before it commences, but you do not have to let your employer know if you will be striking or not.

It is crucial that this stage is done correctly, or the strike may be considered unlawful.

Your rights while on strike

Your union must tell you when the strike will take place and for how long.

During this time, it is your right to decide whether you want to strike. If you decide to participate, you are likely to be unpaid for the days spent striking, and your employer may reduce your length of service by the number of days you were on strike.

Industrial action should not be classed as breaking your period of continuous employment.

While taking part in lawful strike action with appropriate notice, you cannot be dismissed for doing so.

However, if your union has failed to:

• Organise an official ballot
• Give the correct amount of notice to your employer
• Formally call its members to take action

You may also be at risk of being disciplined if you strike in favour of a ‘closed shop’ – only employing union members – or in sympathy with workers of another employer, known as ‘secondary action’.

If you have been dismissed for taking part in industrial action and think this was done unlawfully, you can complain to an employment tribunal.

Being asked to return to work

As evidenced by requests from NHS trusts, employers are allowed to formally request that some staff return to work to provide an essential service, through the trade union.

However, you cannot be legally forced to return to work until the agreed-upon industrial action has finished.

How can I access support?

Many disputes resulting in strike action are ongoing and may incur a complex situation between employees and their employer.

Industrial action is intended to cause disruption to employers, so you may face legal challenges to strike action if it does not follow the correct procedure.

In this case, you’ll need to speak to the experts. We’ll be able to advise you on how to proceed and whether you or your employer have breached any regulations.

We also have extensive experience working with trade unions and negotiating in tandem with their representatives.

For advice and representation during strike action, please contact our team today.