ATL

One strike and you're out?

The rules on industrial action can be complex, but falling foul of them could mean dismissal. ATL solicitor Philip Lott explains

Industrial action (a strike, a work to rule or other collective withdrawals of good will) can be a powerful and effective weapon. However, the law imposes strict rules on its use. Although ATL regards industrial action as a last resort, in a typical year we are obliged to take action in around 16 workplaces, on issues ranging from pay disputes, the imposition of reorganisations, unjustified redundancies, unreasonable workloads and (most recently) a refusal to teach disruptive or violent students.

We have just produced a new and comprehensive guide, Industrial action, setting out ATL's policy and approach, the legal requirements, the procedures that have to be followed, and our response when other unions are taking action in which we are not directly involved.

The law on industrial action is both complex and technical. Briefly, employees who take industrial action are only protected from dismissal if the action is both 'official' and 'lawful'. To be official, it must be organised through, and authorised by, a trade union. For this purpose it does not matter whether the trade union is formally recognised by the employer or not. Unofficial (wildcat) strikes or industrial action expose the participants to the risk of dismissal without any redress.

To be lawful, the action must satisfy two further tests:

• Firstly, it must concern a dispute with the workers' own employer (ie not a dispute with another employer — even though the individuals may have sympathy with their colleagues there) and it must concern a collective bargaining issue, such as terms and conditions of employment, workload, unreasonable conditions at work, etc.
  It cannot be about a political or policy dispute. Thus, a strike in protest at government education proposals would almost certainly be unlawful.

• Secondly, the union must ensure that the action is supported by a properly run ballot. There are some 17 separate legal requirements on balloting. These include: giving the employer seven days' notice of the ballot; running a secret, fully postal ballot; and then giving the employer (normally the head or principal, the chair of governors and, where appropriate, the local authority) at least seven further days' notice of any action that is called.
  Not surprisingly, it takes more than three weeks to operate this balloting process (and industrial action cannot be legitimately taken in the meantime).

If a dispute escalates in your school or college, you should ensure that all conventional means of resolving the issue have been explored and exhausted — normally with the involvement of a local branch representative and/or ATL caseworker. They will then call a meeting of ATL members to consider whether they wish to proceed to a formal ballot.

It is important to remember that, even though members have protection from a dismissal for industrial action (provided it is both official and lawful), the employer can impose the sanction of partial or total deductions on pay in response to partial or total withdrawal from duties. ATL has a strike fund (known as the sustentation fund) that can reimburse members who suffer salary deductions for authorised strike action — up to a limit of £50 a day for a maximum of 10 days.

If the members in the workplace wish to proceed, the arrangements for — and the conduct of — the ballot are then undertaken by the staff in ATL's London office. One key responsibility of the school or college representative at this time is to contact the membership department in London to ensure that our central computer database of members is fully up to date. Only those members on our central list when the ballot papers are sent out can participate in the vote. The London office will then send out the ballot papers to each individual with a pre-paid return envelope — normally giving at least a week for the members to respond. The result of a ballot is then announced to the members and the employers. Where there is a sufficient level of support, the president and national officers will then authorise the action to begin, in no less than seven days' time.

The result of a ballot has a four-week 'shelf life'. This means that any action authorised must begin within 28 days of the closing of the ballot to avoid being out of time. This can have a significant bearing on the timing of ballots, particularly when a dispute emerges at the end of term.

Find out more in the ATL publication Industrial action.

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