201.Employees who take industrial action are in breach of their contracts of employment and can be lawfully dismissed. However, the law currently specifies the following exceptions to that rule where employees so dismissed have grounds to apply to employment tribunals for unfair dismissal:
	under section 237 of the 1992 Act, an employee has no right to complain of unfair dismissal if at the time of dismissal he is taking part in unofficial industrial action, unless it is shown that the reason or principal reason for dismissal or selection for dismissal was one of those specified in sections 99(1) to (3), 100, 101A(d), 103 or 103A of the 1996 Act (dismissal in maternity, health and safety, employee representative and protected disclosure cases); and
	under section 238 of the 1992 Act, an employee who takes official strike or other industrial action has a right to complain of unfair dismissal if one or more relevant employees of the same employer have not been dismissed, or if another employee has been offered re-engagement within three months of dismissal and that the complainant has not been offered re-engagement. In other words, an employee has a right to complain of unfair dismissal if the employer dismisses selectively (although such selective dismissal is not in itself a ground for unfair dismissal proceedings).
202.Section 16 gives effect to Schedule 5, which allows employees who take or have taken industrial action to complain of unfair dismissal in specified, additional circumstances, in line with the Government’s proposal in Chapter 4 of Fairness at Work to extend the protection of those who take lawfully organised official industrial action. It does this by inserting a new section 238A after section 238 of the 1992 Act. The new provisions do not apply to unofficial industrial action, which is dealt with in section 237 of the 1992 Act.
203.New section 238A has the effect that an employee who takes part in “protected” industrial action, and to whom one of the following circumstances applies, will be regarded as having been unfairly dismissed. The circumstances are:
	if the dismissal takes place within a period of eight weeks beginning with the first day on which any employee involved in the industrial action took such action, whether or nor at the date of dismissal the employee is still engaged in such action;
	if the dismissal takes place after the period of eight weeks has elapsed, but the employee had ceased industrial action before the eight week period ended; or
	if the employee has failed to end the industrial action before the eight week period elapsed and the employer has not followed all reasonable procedural steps to resolve the dispute.
“Protected” industrial action refers to action which the employee is induced to commit by his union, provided that the union’s action in doing so is protected under section 219 of the Act from liability in proceedings in tort for inducement to break, or interfere, with contracts.
204.New section 238A(6) sets out the following factors which the tribunal should particularly take into account when assessing whether employers have taken reasonable procedural steps to resolve the dispute:
	whether the employer or the union had followed agreed procedures to resolve the dispute;
	whether the employer or the union had offered or agreed to commence or re-open negotiations after action had begun; and
	whether the employer or the union had unreasonably refused to involve a third party (in practice this is likely to be ACAS) in helping resolve the dispute through conciliation or mediation. (Mediators are third parties who make non-binding recommendations to help resolve disputes. In contrast, arbitrators can make binding recommendations. For the purposes of new section 238A, mediators must confine their recommendations to procedural matters only.)
205.New section 238A(7) has the effect that in judging whether an employer had taken such “reasonable steps” the tribunal should not become involved in judging the merits of the dispute.
206.New section 238A(8) deals with circumstances where a union repudiates industrial action during the course of the dispute, thereby changing the status of the industrial action from official to unofficial. It provides that if employees continue to take industrial action beyond the day following the union’s repudiation, then they lose their entitlement to bring an action for unfair dismissal under the section. So, for example, if the union repudiated the action on a Monday, the entitlement would be lost if the employees took action on or after the following Wednesday.
207.Paragraph 4 of the Schedule extends the existing coverage of section 239 of the 1992 Act, which deals with supplementary provisions relating to unfair dismissal, to ensure that the new rights under new section 238A are to be construed as one with Part X of the 1996 Act (unfair dismissals). However, unlike the general position under Part X of that Act, employees are not to be required to satisfy any condition of length of service; nor is there to be any upper age limit in order to qualify for the new right to bring a complaint.
208.Sub-paragraph (5) has the effect that tribunals may consider applications for unfair dismissal under new section 238A while industrial action is still proceeding, but may not consider applications for re-instatement or re-engagement until the end of the dispute. It also allows provision to be made by regulations under section 7 of the Employment Tribunals Act 1996 to require tribunals to carry out pre-hearing reviews in specified circumstances, and to enable or require tribunals to adjourn cases in specified circumstances. It is envisaged that this power will be used to require pre-hearing reviews in all cases where the grounds for the claim fall under new section 238A and to require tribunals to adjourn such proceedings where they become aware that the courts are considering actions brought by the employer or others challenging the legitimacy of the union’s organisation of the industrial action in question.
209.Paragraph 5 makes consequential amendments to section 105 of the 1996 Act, regarding the right not to be unfairly dismissed by means of selective redundancy, to take account of the new rights under new section 238A. The amended section 105 ensures that an employee cannot be fairly dismissed by selective redundancy if he is selected for a reason mentioned in new section 238A(2).
Commentary on Sections Leave for family reasons Section 16 and Schedule 5: Unfair dismissal of striking workers