strikes, labour rights, and trade unions

what is industrial action?

an industrial action is where a group of workers collectively engage in an action that hinders their employer(s) business, for the purpose of exerting leverage over those employer(s) during employment negotiations (eg regarding pay or other working conditions).

types of industrial action include:

• striking

• picketing (ie workers striking and standing outside the workplace telling people why they are striking), and

• limitations to work that fall short of full strikes (eg refusing to work overtime or working deliberately slowly)  

what is a strike?

a strike is one of the most common types of industrial action. strikes are when workers purposefully stop working as a form of industrial action. for example, when train drivers do not drive trains during rail strikes or teachers do not teach classes during teachers’ strikes. 

an example of a situation that may prompt a group of employees to strike is when workers in a particular industry (eg doctors, teachers, or rail workers) have been collectively receiving the same (or essentially the same) rate of pay for a long time and this has, in real terms, become unreasonably low. if the group of employees requests a pay increase (eg via their trade union) and this is denied, striking is a negotiating tactic that may be used to demonstrate the employees’ conviction they should fairly be paid more. 

is striking allowed?

striking is not automatically permitted in the uk. however, organisers and employees participating in a strike receive a degree of protection under the law if their industrial action (eg strike) meets certain criteria (ie is ‘protected’). to be protected, an industrial action must generally:

• be organised by a trade union

• be related to a trade dispute (ie a dispute between workers and their employer that is connected to employment terms, such as pay or physical working conditions, or similar)

• not be one of the types of action that are specifically excluded from protection (eg an action aimed at enforcing somebody’s membership of a trade union or a secondary action, ie action by someone with a different employer to that the strike is related to - this can happen out of sympathy for those who are part of the official strike) 

• comply with the specific balloting and notice requirements, and

• comply with any relevant duty to take reasonable steps to abide by an employer’s notice regarding a service subject to minimum service regulations 

individuals organising or participating in industrial action that is not protected (ie unofficial) may be subject to financial penalties following legal claims (eg by claims related to business losses brought by their employer). these individuals may also (or alternatively) be subject to disciplinary proceedings brought by the employer in relation to a breach of their employment contract (eg as the employee has, without a valid excuse, not performed work). any such proceedings must still be carried out in accordance with a fair disciplinary process (eg following the employer’s disciplinary procedure), as the employee’s regular employment rights will still apply. 

when an industrial action is protected, those with employee status who strike are generally protected from dismissal. this means that, if their employer dismisses them within 12 weeks of participating in the protected action due to their participation in this action (or after this 12 week period has elapsed, if the employer hasn’t appropriately attempted to resolve the dispute with the union), this may constitute unfair dismissal, for which the employee can bring a legal claim against the employer. additionally, the employer will be protected from being subject to detriment (ie less favourable treatment) due to their taking part in protected industrial action. 

who can strike?

generally, employees who are members of the relevant trade union (ie the ‘bargaining unit’ on whose behalf the union can act or make decisions) can strike. it does not matter if they did not vote in the ballot. certain non-union members may also be able to participate. 

certain individuals cannot strike. for example, members of the armed services and members of the police force. additionally, breaching an employment contract in a way that is likely to endanger human life or valuable property may be a criminal offence - meaning striking will not be suitable in such circumstances. 

what are the balloting and notice requirements for strikes?

a trade union will hold a ballot (ie a vote) so that the union’s members can vote on whether or not to strike (or to take other industrial action). ballots must be held in accordance with specific rules to be valid, ie the union must:

• hold the ballot before the industrial action starts

• give the employer at least one week’s notice of the start of the ballot

• invite all trade union members who are eligible to vote

• use a postal ballot, following voting paper format rules

• share final tallies of the votes with everyone who was eligible to vote

• inform the employer as soon as possible of the result

• have an independent ballot supervisor (if over 50 union members are being balloted)

for a successful vote, at least 50% of members who are eligible to vote must do so. moreover, if the workers work for an important public service, then at least at least 40% of members who are eligible to vote must vote yes.

action must be taken within 6 months of a successful ballot to be covered by that ballot. 

once a strike has been planned, the union must generally give the employer at least 14 days’ notice before the start of the strike. 

legal considerations during strikes

do employees need to be paid while they’re striking?

staff members who are on strike usually do not need to be paid by their employers during this time. a trade union will sometimes replace a staff member’s pay while they’re striking, but this isn’t compulsory and the amount provided may be less than the staff member’s usual pay.

however, payments related to various types of leave must still be paid by an employer if an entitlement arises during a strike. for example:

• sick pay must still be paid as usual, if an eligible staff member is sick during a strike

• a staff member taking annual leave during a strike should still receive their regular holiday pay

• pay during family leave (eg adoption leave or maternity leave) should be paid as usual during a strike

what are minimum service levels?

minimum service levels (msls) are a mechanism for limiting who and how many people can strike within certain sectors, in order to ensure that certain minimum levels of service are provided. they were introduced in july 2023 by the strikes (minimum service levels) act 2023. the aim of msls is ensuring that important public services are not interrupted to the public’s detriment. however, there is some concern that this may limit the ability of workers in key sectors to negotiate for fair conditions of employment. 

for minimum service levels to affect a sector, regulations (ie legislation) must first be implemented that require certain service standards to be met in that particular sector. sectors currently covered by msls include:

• health services (ie ambulance services)

• rail transport services (a number of staff can be prevented from striking to enable a specified number of a passenger rail service’s usual timetabled services to run during a strike)

• fire and rescue services

• border security services

further regulations are under consideration, including for education and hospital services. 

when an employer in an applicable sector is notified of an upcoming strike, they can make a work notice that identifies workers who must work during the strike to ensure that the msls are met. if these identified workers then strike, they will not be protected. 

can agency workers cover striking workers?

temporary agency workers cannot be provided to an employer to cover the role of an employee who is taking part in a protected strike. 

if a temporary agency worker is already in place during a strike as a regular part of business operations (eg to cover an employee on family leave), they may continue working for the employer during the strike.

what if staff members can’t get to work due to strikes?

strikes affect an employer’s customers as well as the employer itself. in the case of transport strikes (eg train strikes and tube strikes), these customers are often other employers’ staff members, who the strikes may prevent from being able to get to work.

an employer is not generally obliged to pay a staff member who cannot attend work, whether this is because a strike prevented them from being able to travel to work or for another reason (eg because they simply did not want to go to work). however, paying staff members may be legally required if:

• the staff member’s employment contract requires that they’re paid in the relevant situation (eg when they cannot travel to work due to formal strike action)

• they’re not attending work as they are sick (usual sick pay rules will apply), or

• the employer chooses to close the workplace during a strike even though the staff member was willing to travel to work 

even when an employer is not legally required to pay a staff member who cannot attend work due to a strike, they may choose to do so to avoid staff members becoming disgruntled and leaving their jobs or lowering their performance. alternatives should also be investigated, such as:

• allowing working from home (even just on a temporary basis - although health and safety considerations for employees working from home must still be considered)

• allowing alternative or shorter hours to be worked

• suggesting holiday is taken

• changing shift patterns so that staff members who are able to make it to work during a strike are scheduled to work during the strike

• rearranging events that require in-person attendance (eg client meetings or trainings)

what is a trade union?

a trade union is an organisation that a particular group of workers or employees are members of (eg the workers or employees of a particular employer). the union’s purpose is to represent and seek to further the interests of the group as a whole. for example, it can:

• negotiate collectively about employment terms like pay and working conditions (eg by organising strikes)

• represent members in discussions about large events (eg significant redundancies or business transfers)

• accompany members to meetings with their employer (eg disciplinary or grievance meetings and appeals)

an individual will choose whether or not to join a union. if they join, they’ll pay a membership fee. 

trade unions can negotiate collective agreements on behalf of their members. these are agreements between the union and an employer (sometimes multiple employers and/or unions) that establish matters related to the members’ employment. for example, terms of employment (eg physical working conditions or minimum pay requirements). collective agreements can cover staff members who are not union members as well as those who are. however, the terms of a collective agreement are not automatically incorporated into any staff member’s employment contract - the agreement must be made in a specific way (or the employment contract changed later) for this to occur. 

what rights do union members have?

members of a trade union have various rights in relation to their union membership. for example, an employer cannot:

• refuse to employ someone due to their trade union membership

• offer somebody incentives in order to induce them not to be a member of a trade union or to take part in certain activities related to it

• dismiss someone due to their trade union membership or because they want to be a union member or took part in union activities

• treat someone unfavourably (ie subject them to detriment) due to their  trade union membership or participation in union meetings 

trade union members also have other rights related to trade unions. for example, the right to be accompanied by a trade union representative to certain employment meetings (eg redundancy consultations) and the right to participate in protected industrial actions (eg strikes).  

legally holding or participating in a strike, or managing a business whose employees are striking, can be complex. before initiating any industrial action or taking any action against an employee who is taking part in industrial action, consider asking a lawyer for advice or contacting the acas helpline.