Since the “summer of strikes”, the London tube service has gone through mass walkouts, along with national rail and overground. Even now, the RMT rail union has communicated further strikes throughout March.
Public transport is just one example; the whole country is in a moment of upheaval in labour relations reminiscent of the 1980s. But despite the seeming spontaneity of the new strike announcements, industrial action is not a decision quickly made.
Usually, during and in the period anticipating a strike, unions organise campaigns to vote on or to show support for, to explain to the public the reasonings behind the industrial actions. So the key is that there is constant communication among union members, in order to make the motivations and steps clear.
However, the average person may know the apparent motivations behind the union members’ decisions, but the mechanisms behind them might seem a bit less clear. So how is a strike decided? What exactly is going on among the affected workers?
How is a strike decided?
The only way a strike can be legally decided is if a trade union can determine that all participating members have gone through a proper ballot and the majority voted for industrial action.
There are some characteristics a ballot needs to have to be considered valid. For instance, it has to be open to all members, has to be in postal form with a box to tick, and it has to be overseen by a person appointed by the union if it involves more than 50 members.
Once the voting takes place, the union body is to communicate how many people have voted and the exact split between “no” and “yes”.
And that is how the RMT determined its next steps, for example. The union declared that the strike action will probably keep going for another six months, involving the National Rail and TfL, since 94% of the union members voted in favour of it at the beginning of February 2023. Mick Lynch, secretary general of the RMT, stated that “strikes would continue for as long as it takes”.
Workers also sometimes call wildcat strikes, which is when employees halt their work without alerting unions (if they have one) or the employer. Even though this kind of industrial action is not necessarily illegal, it is almost certainly a breach of any employment contract and would leave striking workers with far fewer protections. An example of this happened in August 2022, when Amazon warehouse workers in Essex decided to organise a mass walkout after receiving only a £0.35 pay rise offer.
Do you get paid for going on strike?
According to UK law, an employer is not obliged to pay striking employees. However, there is one slight exception: partial performance.
Partial performance means that employees are not striking completely, but they still refuse to do some of their contractual tasks. In the case that an employer accepts partial performance, the employees must still be paid to cover the extent of the work they have done.
If an employer does not accept partial performance, on the other hand, they must communicate to their employees that, since they are going against their contractual duties, there is no obligation of payment.
A striking employee’s pay can be deducted only within the limit of how much work they missed, and if they were striking on a day off, the employer cannot deduct any money from their paycheck.
Can you be sacked for industrial action?
The short answer is yes, an employee can be fired if they refuse to fulfil their work duties while on strike. However, certain cases would constitute unfair dismissal.
For example, a striking worker cannot be sacked if:
- the strike is appropriately organised and is a result of a valid ballot
- the strike is happening because of a dispute over contractual terms between the employee and the employer
- the employer was given a thorough reasoning for the industrial action at least seven days before
When all of these conditions are respected, if an employee is let go within 12 weeks of the strike’s start date, they can claim unfair dismissal at an employment tribunal. This is because the Employment Relations Act 2004 designated 12 weeks as the protected period for striking.
On the other hand, an employee can be dismissed for industrial action if:
- a ballot hasn’t taken place or wasn’t properly set up
- there was no notice given to the employer
- industrial action is proposed by someone who doesn’t have the authority to do so
- the strike is against a secondary employer (secondary action)
- it doesn’t follow the industrial action law
If these conditions are met, usually an employee who got fired during an industrial action cannot claim unfair dismissal.
At the end of January 2023, a new bill came to Parliament, which is not finalised yet, that would entail some employees in certain sectors being required to work during strike action. Before it can become law, however, it needs to go through the House of Lords.
The rail industry and emergency services would, if the bill passed, be exempt from industrial action and could be fired if opposed. This would also mean that unfair dismissal would not be valid in these circumstances, and unions have declared that there will be legal action against the UK government involved in case the bill passes.
How are strikes resolved?
A strike can be resolved via negotiations between the unionised employees, their union representatives and the employer. Even if unions are not always recognised, some employers try to reach a compromise with them. During these meetings, the main components are HR departments and managers, alongside union representatives.
These negotiations can end in one of two ways: either with trade-offs, meaning that both parties accept some of each other’s terms and the offer is accepted, or a deal is proposed but refused by the other side, in which case the strike will continue.
For example, at the end of February 2023, Network Rail director Andrew Haines declared that negotiations with the RMT were on “hiatus”. This is because, as Haines explained, the union was against the “fundamental principles” of the offer.
“We are having to take stock because three consecutive times we’ve reached what we’ve believed is an in-principle deal with the negotiators,” said Haines, “only for it to be rejected three times by the executive committee of the RMT.”
In this case, the RMT refused to even put the proposed deal through a vote, causing more strikes to be announced starting on 16 March 2023.
However, bus drivers employed by Abellio in London took the opposite approach in February. Unite members received and accepted an 18% pay rise, which entails that drivers with more than two years of experience will earn £18 an hour. This happened after more than 20 days of industrial action and mass walkouts that started at the end of 2022.
“This is an important pay victory. Workers have stood firm and with the support of their union, Unite, they have secured a richly deserved pay increase,” Sharon Graham, Unite’s general secretary, shared.