A number of employees dismissed at a time of unofficial industrial action against their employer have failed in their unfair dismissal actions. The case provides a useful illustration of how employers may be able to fairly dismiss employees at a time of unofficial industrial action.

Industrial action will be “unofficial” where any of the employees taking part are members of a union which has not endorsed the action. In general, employees dismissed whilst taking part in such action are not eligible to claim unfair dismissal.

In Sandhu & Others v Gate Gourmet, unofficial industrial action took place by way of a gathering of a number of employees in the staff canteen when they should have been working. They were disgruntled because their employer had engaged a number of seasonal workers. The employees refused to leave the canteen and, following a warning by management that they risked summary dismissal, they were dismissed. Further dismissals occurred involving employees who had been absent without leave at the time and who were believed to have been taking part in the action.

Almost all the employees who had been present in the canteen who went on to bring claims of unfair dismissal were unsuccessful because it was clear that they had been dismissed whilst participating in the action and were therefore not entitled to bring a claim at all. However, six of the Claimants had slightly unusual circumstances that led to the matter being considered by the Employment Appeal Tribunal.

The first two employees were trade union representatives who were in the canteen at the time of the dismissals. They had remained there in spite of the dismissal warnings, making no effort to address staff. Had they been present with a view to resolving the situation, it is possible that they would not have been classed as participating in the action and therefore would have been at least eligible to bring a claim of unfair dismissal (which would then be heard according to the normal principles of substantive and procedural fairness). However because of their inaction it could not be said that they were present in their capacity as trade union representatives. They were justifiably treated as having participated in the action and could not bring claims of unfair dismissal. This was so even though one of the employees had not been due to work that day and had been called in by Gate Gourmet management once the action began.

The third, fourth and fifth employees were dismissed after periods of absence without leave, some of which coincided with the unofficial industrial action. They were not precluded from bringing claims because the bar to bringing a claim only arises where the employee is participating in such action at the time of their dismissal. In their cases, the dismissals came after the (alleged) participation in the action, and not during it, and so their unfair dismissal claims could proceed. Those claims were not, however, successful; not only had the employer followed a fair procedure, the dismissals were substantively fair on the grounds of misconduct. This was so even though one of the employees had not been viewed on the picket line (unlike the other two) and, further, part of her period of absence was covered by a medical certificate - the employer had acted within the range of reasonable responses and had fairly dismissed, even where there was no definitive evidence that the employee had participated in the action.

The sixth employee was similarly absent without permission and without explanation. However, as his dismissal letter was received during that time, rather than afterwards, he was participating in the industrial action at the time of his dismissal and therefore there was no jurisdiction to hear his claim of unfair dismissal.

This case reveals a relatively low threshold in making out that an employee has participated in unofficial industrial action (and therefore should be unable to pursue an unfair dismissal claim) and that dismissals which take affect after the action has ceased may in any event be fair on the grounds of misconduct. It does not, however, mean that any such post action dismissal will certainly be fair; each case must be decided on its own merits.