Part VE+W+S Industrial action

Loss of unfair dismissal protectionE+W+S

237 Dismissal of those taking part in unofficial industrial action.E+W+S

(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.

F1[(1A)Subsection (1) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in [F2or under—.

(a)section [F398B,] 99, 100, 101A(d), 103 [F4 , 103A, 104C [F5, 104D or 104E]] of the Employment Rights Act 1996 (dismissal in [F6jury service,] family, health and safety, working time, employee representative, [F7 protected disclosure, flexible working [F8, pension scheme membership, and study and training]] cases),

(b)section 104 of that Act in its application in relation to time off under section 57A of that Act (dependants);]][F9; and a reference to a specified reason for dismissal includes a reference to specified circumstances of dismissal]

(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.

(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.

(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 M1Banking 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.