Unofficial strike action - what is the employerís position?

Doug Styles, Associate at law firm Thomas Eggar, investigates employersí legal rights

Following recent events at Gate Gourmet - the food providers for British Airwaysí flights out of London Heathrow - there has been significant speculation about what Gate, and subsequently BA, were legally allowed to do in response to unofficial strike action.

Gate - one of the worldís largest providers of in-flight meals - dismissed 600 staff following unofficial strike action over restructuring plans described as necessary to save the business. Gate insists it had to change outdated working practices and cut costs at its UK operations in the face of huge losses. The sacked staff insisted they had no option but to strike after a dispute over pay, working conditions and the appointment of part time workers they believed had been brought in to replace them.

Gateís customers include BA, whose Heathrow staff went on strike in sympathy with the sacked Gate workers. Whilst things are slowly returning to normal, many employers are wondering who is in the right.

An employee taking part in unofficial industrial action at the time they are dismissed is normally disbarred from making any unfair dismissal claim. The employee will only be able to make such a claim if they were dismissed for one of the íautomatically unfairí reasons specified in existing employment legislation. These include dismissal for health & safety reasons, breach of working time rules, acting as an employee representative and whistle-blowing cases.

Individuals who take part in official industrial action have protection against dismissal, and this protection was increased in 2000.

Whilst talks continue between the Transport and General Workers Union (TGWU), representing the sacked staff and Gate, it is acknowledged that the walkout by BA staff was illegal íwildcatí action. As such, the TGWU has been persuading its BA members to go back to work.

It does seem that Gate acted within the law by sacking the staff who were on unofficial strike action, but it is perhaps doubtful whether they anticipated the impact on BA, one of its biggest customers.

It is perhaps ironic that the reason Gate staff resorted to unofficial strike action in the first place was because they feared they would lose their jobs!

For advice on employment issue please contact Thomas Eggar on 0870 160 1300.