Davis v Friction Dynamics (Employment Tribunal, Unreported Liverpool ET, case no. 6500432/02)

In 1999 the Law was changed to provide a little more legal protection from unfair dismissal for dismissed strikers and workers taking other forms of industrial action. The new law was a welcome improvement from the previous situation, where workers only had protection if there were selective dismissals during the first three months of industrial action. All an employer needed to do was either dismiss everyone taking part in the industrial action, or wait three months to selectively dismiss. But the new law was criticised for not going far enough. There was no change to the common law rule that industrial action is a breach of the contract of employment and the new rights not to be unfairly dismissed were limited and hedged with qualifications.

Given the political significance to the trade union movement of the law change, it is slightly surprising that only now are the first cases coming to the Tribunal to test its provisions. Let's hope that it's because employers have accepted the new position and are not dismissing their workers who are taking industrial action.

Compliance with the law was certainly not the position adopted by the employer in Davis v Friction Dynamics, one of the first tribunal decisions on the new provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 which sets out the limited unfair dismissal rights to workers engaged in 'protected industrial action'. The section only gives protection to official industrial action which complies with the labyrinthine rules on trade disputes, giving of notice, postal balloting, calling action and the like. It then gives workers the right to bring an unfair dismissal complaint either if: 
(i) the dismissal takes place within the period of eight weeks beginning when the action started or

(ii) where dismissal takes place later, if the employer has failed to take reasonable procedural steps to resolve the dispute.

Bingo

In Davis the workers at a factory were faced with unilateral management action to remove the workers' contractual rights to have their terms and conditions determined by a collective bargain. The employer also took steps to remove union involvement at the workplace. The workers balloted for industrial action and a strike was called. On the first day of the strike the employer wrote a letter to each of the strikers, stating that 'You have taken industrial action and by doing so have repudiated your contract of employment'.

A manager had consulted a text book before writing this letter, adding the word 'bingo' against a passage indicating that the whole of a striking workforce could be sacked without anyone being able to claim for unfair dismissal (the same manager deleted the word on the document which went to the tribunal, not realising that the applicants had already copied it). Such is the practice of enlightened management in the 21st century.

After this the employer imposed holidays and refused to allow the workers to return to work. Some meetings took place, in which ACAS was involved. It was confirmed by various witnesses, including an MP, that the American managing director, Craig Smith, viewed the strikers as 'history'. Eight weeks after the strike began, the employer sent further notices to the strikers sacking them all.

Against this background the tribunal considered s.238A of the 1992 Act. Perhaps remarkably given the impenetrability and complexity of the provisions on calling lawful industrial action, the workers here complied with the many duties on balloting etc., and this was unchallenged by the employers.

Stunning victory

The case was a stunning victory for the workers and their union, the TGWU, represented at the tribunal by John Hendy QC and Michael Ford of Old Square Chambers. The tribunal found in the applicants' favour on two grounds. The letter written to the employees on the first day of the strike was an unambiguous letter of dismissal, so that the workforce was dismissed during the eight week period and the dismissal was unfair.

In the alternative, it held that the employer failed to attend meetings and deliberately sought to obstruct settlement talks, so that it had not taken reasonable procedural steps. The significance of this failure was that it extended the period of protection from dismissal for the striking workforce beyond the eight week period.

What about the future?

So far so good. But it should be clear that the decision turns, of course, on its facts. Perhaps foolishly, the employer sacked the whole workforce on the first day of the strike and then did not take care to appear as if it were trying to settle the dispute.

Other, better advised employers may take more care to delay dismissals and to erect the necessary facade during the eight week period. After that, and so long as the procedural steps are reasonable, the whole workforce can be sacked, and unfair dismissal protection is lost - even though the workers have complied with every single one of the many legal duties on taking legal action. But this case demonstrates that Tribunals may be astute to a pretence of negotiation by an employer. The meetings held, even ACAS' involvement, did not amount to reasonable proedural steps.

UK law still lags far behind

After a long review the government has indicated that the law will not be changed; UK law continues to lag far behind that of other European countries, international labour standards and the minimum level of respect that workers are entitled to expect. The 'right' to strike in law remains illusory: a 'right' whose existence is determined by the employer.

However, until the law is extended to provide greater protection, this case proves how even the existing law can be used to gain redress for sacked strikers.