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7 March 2001

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New Right to Strike?


New provisions came into force on 24 April 2000 which effectively give employees the right to strike in certain circumstances.

The new measures provide that an employee may be regarded as being unfairly dismissed if the principal reason for the dismissal is that the employee took part in "protected" industrial action. "Protected" industrial action is defined broadly as industrial action lawfully organised in accordance with the Trade Union and Labour Relations (Consolidation) Ad 1992. However, provided the employer complies with a proper procedure, this right to claim unfair dismissal lasts only eight weeks from the commencement of the protected industrial action.

For an employee to claim that his/her dismissal is automatically unfair, the employee must show that he/she was dismissed: 

  1. during the period of protected industrial action and that period has not lasted for more than eight weeks; or 

  2. after a period of protected industrial action which lasted for less than eight weeks: or 

  3. after eight weeks of protected industrial action, where the action is continuing. In this case, the employee must also be able to show that the employer failed to take such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the industrial action related. 

In all three cases, the employee must also show that the reason, or principal reason for the dismissal is that the employee took protected industrial action.

The new provisions provide some guidance on how to decide whether an employer has acted reasonably in resolving a dispute, although questions on the interpretation of these provisions are bound to arise.

With all employees qualifying for this protection, regardless of their age or length of service, employers should keep this new 'right to strike' firmly in mind, when dealing with any form of industrial action.

May 2000

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