Trade Union and Labour Relations (Consolidation) Act 1992

Loss of unfair dismissal protection

237Dismissal of those taking part in unofficial industrial action

(1)An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2)A strike or other industrial action is unofficial in relation to an employee unless—

(a)he is a member of a trade union and the action is authorised or endorsed by that union, or

(b)he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(3)The provisions of section 20(2) apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(4)The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

Provided that, where an act is repudiated as mentioned in section 21, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

(5)In this section the “time of dismissal” means—

(a)where the employee’s contract of employment is terminated by notice, when the notice is given,

(b)where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

(c)where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the [1971 c. 80.] Banking and Financial Dealings Act 1971.

(6)For the purposes of this section membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member.

238Dismissals in connection with other industrial action

(1)This section applies in relation to an employee who has a right to complain of unfair dismissal (the “complainant”) and who claims to have been unfairly dismissed, where at the date of the dismissal—

(a)the employer was conducting or instituting a lock-out, or

(b)the complainant was taking part in a strike or other industrial action.

(2)In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

(a)that one or more relevant employees of the same employer have not been dismissed, or

(b)that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.

(3)For this purpose “relevant employees” means—

(a)in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and

(b)in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action.

Nothing in section 237 (dismissal of those taking part in unofficial industrial action) affects the question who are relevant employees for the purposes of this section.

(4)An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

(5)In this section “date of dismissal” means—

(a)where the employee’s contract of employment was terminated by notice, the date on which the employer’s notice was given, and

(b)in any other case, the effective date of termination.

239Supplementary provisions relating to unfair dismissal

(1)Sections 237 and 238 (loss of unfair dismissal protection in connection with industrial action) shall be construed as one with Part V of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (unfair dismissal).

(2)In relation to a complaint to which section 238 applies, section 67(2) of that Act (time limit for complaint) does not apply, but an industrial tribunal shall not consider the complaint unless it is presented to the tribunal—

(a)before the end of the period of six months beginning with the date of the complainant’s dismissal (as defined by section 238(5)), or

(b)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable.

(3)Where it is shown that the condition referred to in section 238(2)(b) is fulfilled (discriminatory re-engagement), the references in—

(a)sections 57 to 61 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978, and

(b)sections 152 and 153 of this Act,

to the reason or principal reason for which the complainant was dismissed shall be read as references to the reason or principal reason he has not been offered re-engagement.