Throughout 2022 and into 2023, the UK has experienced large-scale industrial action across several sectors and industries, in relation to a range of disputes concerning pay and working conditions. Action and threatened action in the education sector, has included action short of a strike.
There are, broadly speaking, two types of industrial action:
A strike essentially means that workers refuse to carry out any work for the employer (i.e., they have withdrawn their labour). Action short of a strike (“ASOS”) encompasses any action which imposes pressure on the employer as a bargaining tool, but which does not amount to a full withdrawal of labour.
ASOS can cover a wide variety of different actions, including:
The Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) sets out the legal framework for lawful industrial action. Whether any industrial action, including ASOS, is lawful depends on whether it is official and whether it is protected.
In broad terms:
Whether the action amounts to a breach of contract or not is important because –
An employee who goes on strike will usually be breaching their employment contract. This is because striking will involve the employee’s complete withdrawal of labour.
Whether ASOS amounts to a breach of contract will depend on exactly what the action is and the terms of the employee’s contract. Where, for example, employees are working to rule, it may be difficult for the employer to point to a specific, express term in the contract which is being breached (given that the point of working to rule is to work to the exact terms of the contract). Nonetheless, an employer may be able to establish that intentionally disrupting the employer’s business, by slowing down the rate of work or productivity, is a breach of an implied term of the contract.
Where the ASOS amounts to a breach of contract, the employer can withhold pay – either by refusing to accept any partial performance and withholding pay entirely until the employee performs their full duties, or by paying only for the duties performed.
There are however potential difficulties with either approach. Telling employees that they are not to come to work unless they are prepared to carry out their full duties is known as “lock-out” and is likely to inflame the dispute. However, accepting partial performance and paying only for the duties performed can also cause difficulties. Depending on the type of work which the employee carries out and the manner in which they are paid, it may be very difficult to quantify what an appropriate deduction to pay would be where the employee is performing only part of their role.
Regardless of whether the ASOS amounts to a breach of contract or not, the rules governing dismissal for participation in any form of industrial action, including ASOS, are set out in TULRCA. The rules are complex. In broad summary:
If you would like advice on dealing with action short of strike within your workplace, please contact Mandy Armstrong or your usual Anderson Strathern contact.