From the DTI:
Dismissal during an industrial dispute
It is automatically unfair to dismiss workers for taking legally organised official industrial action lasting twelve weeks or less. It is also unfair to dismiss them where they have taken action for more than twelve weeks if the employer has not first taken such procedural steps as are reasonable to resolve the dispute. It will be for the employment tribunals to determine whether an employer has taken all reasonable steps, and in doing so, they will have regard to the behaviour of both the employer and the union. For further information, see Industrial action and the law: a guide for employees, trade union members and others.
Otherwise, subject to the exceptions listed below, an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in official industrial action provided his or her employer:
has dismissed all who were taking part in the action at the same establishment as the complainant at the date of his or her dismissal; and
has not offered re-engagement to any of them within three months of their date of dismissal without making him or her a similar offer.
Likewise (again, subject to the exceptions listed below), an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action.
The exceptions are that an employment tribunal can determine a complaint of unfair dismissal from an employee dismissed while participating in official or unofficial industrial action if the reason or main reason for the dismissal was:
the taking by the employee of certain specified types of action on health and safety grounds (see Dismissal for taking action on health and safety grounds);
on maternity related grounds (see Dismissal on the grounds of pregnancy or maternity);
in respect of the taking by the employee of certain specified types of action as an employee representative or as a candidate to become an employee representative, or of the participation of the employee in the election of such a representative (see Dismissal relating to activities as an employee representative); or
that the employee exercised rights under the Working Time Regulations 1998 (see Dismissal relating to the Working Time Regulations 1998); or
that the employee exercised rights prescribed in the Maternity and Parental Leave etc Regulations 1999 (see Dismissal relating to parental leave, Dismissal relating to time off for dependants, Dismissal on the grounds of pregnancy and maternity); or
for reasons related to paternity or adoption leave (see Dismissal related to paternity leave and Dismissal related to adoption leave; or
that the employee asserted the right to time off for dependants (see Dismissal relating to time off for dependants); or
from 6 April 2005, for reasons related to the right to request flexible working arrangements (see Dismissal relating to the right to request flexible working arrangements); or
from 6 April 2005, that the employee had been summoned for jury service or had been absent from work on jury service (see Dismissal relating to jury service).
An employment tribunal can also determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action if the reason or main reason for the dismissal was that the employee made a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure).
Award of compensation
Where the tribunal finds that an employee has been unfairly dismissed it will provide the alternative remedy of an award of compensation. Such an award will usually consist of:
a basic award, based on the employee's age, length of service and weekly pay and calculated in a similar way to a redundancy payment;
a compensatory award, which is an amount which the tribunal considers just and equitable for the loss which the employee has suffered because of the dismissal.
Basic award
The basic award is calculated by adding up the following amounts, but only continuous employment within the last 20 years can count:
11/2 weeks' pay for each complete year of employment when an employee was between the ages of 41 and 65 inclusive;
1 week's pay for each complete year of employment when an employee was between the ages of 22 and 40 inclusive;
half a weeks' pay for each complete year of employment when an employee was below the age of 22.
The maximum number of week's' pay that may be awarded is 30. There is also a maximum week's pay that can be used to calculate the award. (The limit on a week's pay may vary from year to year: the current figure is given in Limits on payments and awards). In trade union, health and safety, employee representative, workforce representative and occupational pension scheme trustee cases (see Interim Relief) there is a minimum figure for the basic award. (This minimum may vary from year to year: the current figure is also given in Limits on payments and awards).
The basic award, including the minimum award in trade union, health and safety, employee representative, workforce representative and occupational pension scheme trustee cases, will be reduced if:
the tribunal considers that the employee's conduct before dismissal justifies a reduction;
the employee was within a year of age 65 at the effective date of termination (only until 1 October 2006);the employee has unreasonably refused an offer of reinstatement from the employer, or has unreasonably prevented the employer from complying with an order for reinstatement; or the employee has already been awarded or has received a redundancy payment; or the employee has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement.
From 1 October 2004, where an employee has been dismissed without statutory dismissal and disciplinary procedures having been followed (if failure to follow them was wholly or mainly the employer's fault) and the amount of the basic award is less than four weeks' pay (before any reduction for the last two reasons above), the tribunal will increase it to four weeks' pay unless it considers that this would result in injustice to the employer. Such an increase will also be made, from 1 October 2006, where it is found that an employee has been unfairly dismissed as a result of the employer having failed to comply with the duty to consider procedure in connection with an employee’s request to continue working beyond retirement.
Compensatory award
This award compensates the employee for the loss suffered as a result of the dismissal insofar as the employer is responsible for this loss. As well as covering the loss of earnings between the dismissal and the hearing and an estimate of future loss, the tribunal will also consider matters such as loss of pension and other rights and any reasonable expenses incurred by the employee as a result of the dismissal.
The compensatory award is an amount the tribunal considers just and equitable in the circumstances, but there is a maximum compensatory award except in cases where the reason for the dismissal is that the employee made a protected disclosure under the Public Interest Disclosure Act 1998 or took action relating to health and safety. (The maximum compensatory award may vary from year to year: the current figure is given in Limits on payments and awards). In particular, the tribunal will reduce the award if it finds that the employee was partly to blame for the dismissal or because the employee did not mitigate his or her loss - for example, by failing to make reasonable efforts to obtain another job. Certain payments made by the employer to the employee - for example, wages in lieu of notice or an ex gratia payment - will normally be offset against any compensatory award. The compensatory award will also be reduced by the amount of the employee's earnings from any other employment between the dismissal and the tribunal hearing.
Since 1 January 1999, tribunals have had the power to reduce the compensatory award where the employee has not made use of an internal appeals procedure whose existence he or she was informed of at or shortly after the time of dismissal. Similarly, the tribunals have been able to make a supplementary award, subject to a maximum of two weeks' pay, where an employer has not allowed the employee to use an appeal procedure provided by him or her. These provisions will be replaced on 1 October 2004, when statutory dismissal and disciplinary procedures come into force. Under the new provisions, if an employer dismisses an employee without the statutory procedure having been completed and the failure to complete it was wholly or mainly the employer's fault, any compensatory award will be increased by at least 10 per cent and up to 50 per cent. Similarly, if the procedure was not completed and the fault lay wholly or mainly with the employee, any compensatory award will be reduced by 10 to 50 per cent. At what point on the scale between 10 and 50 per cent to make the increase or reduction will be at the tribunal's discretion, and in exceptional cases it will be able to make one or less than 10 per cent or none at all.
Non-compliance with the terms of an order for reinstatement or re-engagement: additional award
If the employer refuses to comply with the terms of an order for reinstatement or re-engagement, then the employee should notify the tribunal so that it can look into the matter. If the employee's complaint is upheld, an award of compensation will be made and if there has been a total failure to comply with the order there will be an additional award of compensation over and above the basic and compensatory awards, unless the employer can satisfy the tribunal that it was not practicable to comply with the order. The additional award will be between 26 and 52 weeks' pay.
There is a maximum week's pay that can be used to calculate the additional award. (The limit on a week's pay may vary from year to year: the current figure is given in Limits on payments and awards).
Note: Employment tribunals may however exceed these limits if the total compensation awarded (apart from the basic award) would otherwise be less than the arrears of pay element of the original award with which the employer failed to comply.
PP