A significant change to trade union law has come into force, directly affecting how employers handle dismissal decisions during industrial action. Last week, section 77 of the Employment Rights Act removed the previous 12-week limit on protection against unfair dismissal for employees taking part in protected industrial action. From now on, where participation begins on or after that date, dismissal linked to that participation will be automatically unfair, regardless of how long the action continues. That is a material shift in employer risk. It changes the legal consequences of decisions that are often made under pressure, during live disputes, and means organisations need to be clear about the new boundaries before problems arise.
The change is one of several trade union reforms that came into force on 18 February, including adjustments to notice periods and ballot rules, but it is the extension of dismissal protection which most directly affects day-to-day decision-making once industrial action has begun, so that’s the one attracting many of the headlines.
A key issue to be alive to is around timing. The enhanced protection applies where an employee begins participating in protected industrial action on or after 18 February. That means employers need to know precisely when participation starts, and which legal regime applies. Get the timing wrong and potentially you expose yourself to significant unfair dismissal liability and, importantly, that risk doesn’t diminish after 12 weeks as it previously did. For a senior employee, liability could easily run into six figures.
There is also the threshold question of whether the action is protected in the first place. That requires careful consideration of balloting and notice requirements and whether the action being taken falls within the scope authorised by the union. Getting that wrong means an employer may dismiss believing it’s lawful, only to find it is automatically unfair with no defence available.
Alongside that, employers may need to revisit internal governance. Decisions about dismissal or serious disciplinary action during a dispute now carry greater risk, and escalation processes may need tightening to ensure that managers do not act without full visibility of the legal position.
So let’s get a view on this. Lucy Townley has been alerting her clients to the various changes, including the enhanced dismissal protection, and earlier she joined me by phone to discuss it:
Lucy Townley: “So as of the 18th of February, the really big change for employers is that dismissal becomes a much higher risk response once industrial action is underway. There’s a concept of a protected period which broadly limits automatic unfair dismissal protection to the first 12 weeks of protected industrial action, but from the 18th of February, that time limit falls away. So I guess what that means in practice is that if an employee begins taking part in protected industrial action on or after the 18th of February, dismissing them because of that participation will be automatically unfair, and that’s the case no matter how long the action goes on for. So this is a pretty significant shift, because it fundamentally changes the risk profile around dismissal decisions during a dispute.”
Joe Glavina: “You’ve mentioned when an employee begins taking part. Why does timing matter so much under the new rules?”
Lucy Townley: “The timing really matters, and as we’re telling clients, this is one of the areas where employers are most likely to get caught out if they’re not careful. The key thing to understand is that the protection doesn’t depend on when the dispute started or when the ballot took place. What it actually turns on is when the individual employee begins participating in the industrial action. So if that participation starts on or after the 18th of February, the enhanced protection applies to them. But if they started taking part before that date, then the old rules continue to apply to that individual. This might be quite tricky, and from an employer point of view, this means that employers need to be much more disciplined about tracking participation, especially where disputes run across that February date.”
Joe Glavina: “All of this depends on the action being “protected.” What does that mean in practice for HR teams dealing with a live dispute?”
Lucy Townley: “Yes, absolutely, that’s right. So the enhanced protection only applies where the industrial action is protected. So employers need to be able to assess fairly quickly and accurately whether the industrial action is protected in practical terms, that means checking whether the union has complied with the balloting requirements, checking whether the correct notices have been given and whether the action being taken is actually within the scope of what was authorized by the ballot. From the HR perspective, the really important point is having a clear escalation route in place, so as soon as action starts, someone needs to be checking the legal status of the industrial action, rather than any assumptions being made on the ground or decisions being taken before the analysis has actually happened.”
Joe Glavina: “What does this mean for how employers make decisions internally during disputes, particularly around discipline or dismissal?”
Lucy Townley: “So this means that employers need much tighter internal controls than they may have been used to having in the past. So decisions about dismissal or even serious disciplinary action during industrial action shouldn’t be made in isolation or in the heat of the moment. I suppose what we’re saying to clients is that there should be really clear internal rules so that any decision like that is escalated to HR and if necessary, to your legal advisers, so that the timing and protection issues are checked carefully before any decisions about dismissal are made. Line managers in particular, need to understand that what might feel like a pretty straightforward management response can now carry significant legal risk if it’s not handled properly, and getting that message out there to line managers is going to be crucial.”
Joe Glavina: “Finally, when you look at this change alongside the other trade-union reforms coming in February, how does it alter the overall dynamics of disputes?”
Lucy Townley: “Yes, there are a huge number of trade union related changes coming into place in February, and when you look at the February changes as a package, they make it easier for industrial action to be organized and sustained, whilst at the same time making dismissal a much higher risk option for employers because there will be longer ballot mandates and shorter notice periods. This means dispute might run for a lot longer or flare up more quickly than they may have done in the past, and the enhanced dismissal protection means employers need to think very carefully about how they respond once action is underway, the practical takeaway, really is that preparation and good process matter even more now than ever, because reacting instinctively during a dispute is now much more likely to cause problems than it was before.”
If you would like help reviewing your approach to dismissal decisions during industrial action, or sense-checking your position under the new rules, please do contact Lucy. Her details are there on the screen for you.