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Employment

What is my right to strike?

If you’re one of the 6.5 million Brits who are members of a trade union, you might be considering voting for industrial action. Here’s what you need to know about your right to strike.

The UK is seeing a wave of industrial unrest with rail workers, barristers, call centre staff and posties all exercising their right to strike over low pay or poor working conditions.

Disputes are at their highest point in five years, fuelled by competition for workers amid a shortage of labour, a cost of living crisis and falling wages.

And with around 23 per cent of Brits part of a union, union bosses have warned they could coordinate industrial action to form a national strike if employers don’t get around the negotiating table.

We spoke to Andrew Strong, senior tutor at The University of Law to find out what your rights are if you’re thinking about going on strike.

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Is there a right to strike in the UK?

There is no legal right to strike in the UK, however strike action is legal if organised by a trade union according to conditions laid out in the Trade Union and Labour Relations (Consolidation) Act 1992.

What are the rules for organising a strike?

A union must first be recognised by the workplace it is active in, and have raised a dispute on behalf of its members. It may then ask its members to vote by post – called a ballot to strike – on whether they wish to strike or not. 

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Unions have to give a minimum of 14 days notice to a workplace where they are planning industrial action. This doubled in 2014, when the government also brought in rules requiring at least 50 per cent turnout of union members when deciding on strike action.

Can I go on strike if I’m not in a union?

A strike that is started by workers without any union involvement is called a wildcat strike. Only a union can legally obtain a mandate to strike, so any strike that takes place without authorisation from a union is a breach of an employment contract, and offers no protection from being sacked.

According to the Encyclopaedia Britannica, the name ‘wildcat’ comes from the characteristics associated with the animal: unpredictability and uncontrollability. Sometimes wildcat strikes may include individuals who are part of a union, but the union has not organised or authorised the strike.

Workers at multiple Amazon warehouses across the UK have staged wildcat strikes in response to the company offering employees a pay rise of just 35p – 50p per hour. The protests recently entered their second week. 

Amazon has refused to recognise any union, despite GMB seeking voluntary recognition. The union is seeking to grow its membership to 50 per cent, at which point it will be able to apply to the Central Arbitration Committee (CAC) to force the company to recognise it. This would enable GMB to undertake collective bargaining and legally ballot members for strike action.

Are wildcat strikes illegal in the UK?

Wildcat strikes are not necessarily illegal, but they usually amount to a breach of employment contract or terms of employment. 

A strike that is organised by a registered union according to the correct procedure is legal, and offers those participating in it protections from punitive measures or dismissal. But workers who take part in a ‘wildcat strike’ are not protected from dismissal.

The laws around industrial action are extremely complex. The Trades Union Congress advises that anyone who wants to start industrial action should seek legal advice.

Could I be fired for going on strike?

If you choose to go on strike, you are breaking the terms in your employment contract, however if this is part of legitimate industrial action, your boss should not take any disciplinary actions.

“As long as a labour strike is properly organised through a ballot, employers do not have grounds for dismissal,” said Strong. 

For up to 12 weeks after the industrial action, workers are protected from being sacked due to having gone on strike, and if they are, an unfair dismissal claim can be brought against them at an employment tribunal. 

But after those 12 weeks are up, employees may not be protected from punitive measures brought against them in retaliation for striking. 

“You should also be aware that you cannot and are not protected from striking on behalf of someone else’s employer, also known as secondary action,” adds Strong. 

Also called sympathy strikes, legislation introduced in the 1980s banned secondary action which take place when a union instructs its members to go on strike in support of another union and its causes. However this legislation would not stop separate unions co-ordinating the timing of their strikes to form a national strike.

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Will I get paid while on strike?

If you choose to stop working and participate in a strike, you are no longer entitled to pay. 

“While employers may deduct your pay, they legally cannot take more than one fifth of your weekly pay for a day’s strike action. For part-time employees, pay deductions should be based on pro-rata and for only your contracted hours,” explained Strong.

Going on strike can be a serious financial strain for workers whose reasoning for taking part in industrial action might be because their current pay is unsustainable. Some unions offer a strike fund, paid for by membership subscriptions, to help those who might suffer severe financial hardship when participating in a strike. 

“We did a lot of interviews with trade unions… and what really came across is that they don’t want to take strike action… It means their members lose pay and so on, it really is a last resort,” said CIPD employee relations adviser Rachel Suff. 

“When you are faced with union requests for recognition, it’s better to engage and try and work with your workforce,” she said, warning those bosses who refuse to engage with employee representatives that are more likely to face the threat of industrial action.

Unison has said that taking annual leave during a strike period does not count as taking part in the industrial action, meaning that employees who are on holiday or on sick leave will still be paid as usual.

Do I have a duty of care to the public when on strike?

When people working in the emergency services go on strike, there is the additional consideration of the impact on the public that must be considered. 

The Royal College of Nurses has called its first national strike in its 106 year history, with thousands of nurses set to walk out for two days in December. The Fire Brigades Union, too, is balloting its members on whether they wish to take strike action, after rejecting a five per cent pay offer from the government. 

It is a legal requirement under Trade Union and Labour Relations 1992 to make sure that strike action does not endanger human life or cause serious injury – it is a criminal offence to strike if there is a risk of this happening. 

Emergency treatment by nurses will always be maintained during strike action, the RCN has confirmed. A team will review minimal staffing levels at every health trust facing strike action to make sure there are always enough nurses working to maintain patient safety, a spokesperson told The Big Issue,.  

If a major emergency were to happen that would require more nursing staff, nurses would be taken off picket lines and return to work.

There are different ways of managing a nursing strike. Trusts may choose to implement a “Sunday service” or Christmas Day service or make certain essential services – such as intensive care – exempt from strike action. 

A spokesperson for the Department of Health and Social Care said they hoped nurses would carefully consider the impact any strike action would have on patients.

“We value the hard work of NHS nurses and are working hard to support them,” the spokesperson said. The government increased the basic pay for newly qualified nurses by 5.5 per cent earlier this year, however most nurses received a rise of around 3.7 per cent. 

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