Action short of a strike – what is it and when is it lawful?

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.

What is action short of a strike?

There are, broadly speaking, two types of industrial action:

1. Strike; and
2. Action short of a strike.

A strike essentially means that workers refuse to carry out any work for the employer (i.e., they have withdrawn their labour).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:

• Working to rule: This occurs where employees perform their duties strictly to the letter of their contract and refuse to carry out any additional duties. The aim of working to rule, or “working to contract”, is to slow down the rate of work performed by employees.
• Go slow: This involves employees deliberately working at a slower pace, again to slow down the rate of work being performed.
• Sit in: This involves employees occupying an area for protest on the employer’s premises.
• Work in: This usually occurs where an employer is threatening closure of a premises and those employees whose roles are under threat choose to remain in their workplace and continue working, to show that their roles are still viable.
• Overtime bans: Where employees refuse to perform any overtime.

The legal framework

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:

• Industrial action is official if it is endorsed or authorised by a trade union. Industrial action, including ASOS, which is not endorsed by the union is known as “wildcat action”.
• If a trade union has endorsed industrial action that would involve a breach of an employment contract, it will be liable unless the industrial action is protected.
• Industrial action, including ASOS, is protected if:
  • It is taken in contemplation or furtherance of a trade dispute.
  • The action is not being taken for a number of expressly prohibited reasons (including enforcing the employer to only employ union members and in support of employees who have taken part in unofficial action).
  • The action does not involve unlawful picketing.
  • The action has the support of a properly organised ballot, and the union has complied with notification requirements.

Does ASOS amount to a breach of contract?

Whether the action amounts to a breach of contract or not is important because –

• A union can only be at risk of an interdict (to prevent the action occurring), or for damages (where the action has already occurred) where it has induced a breach of contract (and the action is unprotected); and
• An employer can only withhold wages where the employee has breached their contract.

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.

Withholding pay

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.

Dismissal for ASOS

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:

• The employer is immune from a claim for unfair dismissal where the employee is dismissed for taking part in unofficial action, where the employee is taking part in the action at the time of the dismissal (and provided the dismissal is not automatically unfair);
• The employer is immune from a claim for unfair dismissal in relation to strike action which is official but not protected, provided that it dismisses all of the employees who are taking part in the action and does not offer re-engagement to any employee within 3 months of the dismissals (and provided the dismissal is not automatically unfair);
• The employer has no immunity in relation to industrial action which is both official and protected. Where the employer dismisses an employee for taking part in official and protected industrial action, that employee is regarded as automatically unfairly dismissed.

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.

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