Not all negotiations between employers and unions result in agreement. Effective recognition agreements will contain procedures for dealing with disputes between the union and the employer. There may be compulsory dispute resolution procedures within the agreement including the assistance of external bodies to attempt to resolve the dispute. However, industrial action can result from an ultimate failure by employers and unions to reach agreement.
Industrial action includes any concerted action by workers to bring about or prevent changes to terms and conditions or any other working arrangements. For industrial action to be protected under the law, the following conditions must be met:
- The proposed industrial action must have a lawful purpose
- It must be supported by a ballot
- The ballot must be subject to a series of procedural requirements
- The action must be lawfully called
- The union must notify the employer of its intention to take action
- The action must take place within the duration of the ballot result
The law gives legal immunities to individuals which protect individual striking employees against unfair dismissal and also which protect the union against civil litigation by the employer. However, any worker taking unlawful industrial action will risk dismissal and will not have the right to submit an unfair dismissal claim to a tribunal. Similarly, where industrial action takes place which is unprotected, or where improper picketing takes place, strike action may be unlawful. Where such circumstances prevail, the union, its officers and the strikers may all be liable for legal action in the civil courts.
There is however, no general right to strike or to take any other form of industrial action, including action short of a strike and under common law industrial action does amount to a breach of contract. If the breach is sufficiently serious and amounts to a fundamental breach, employers may be justified in dismissing the individual employees.