The EAT has ruled on the unfair dismissal claims of a number of employees dismissed by Gate Gourmet for taking part in unofficial industrial action (Sehmi v Gate Gourmet London Ltd). For further information on key issues for employers regarding industrial action, see our FAQs on Industrial Action below.

Although it did not decide any new point of law, the EAT confirmed that employees do not have to have participated actively in industrial action to be at risk of dismissal. Passive behaviour, such as unauthorised and unexplained absence during industrial action can amount to participation.

Further, the EAT held that, in circumstances such as those of this case where the industrial action was causing enormous disruption to the business, the employer's response of sacking everyone who was absent without leave or explanation and sorting out the exceptional cases of genuine non-participation by way of appeals against dismissal, amounted to a reasonable process.

Impact on employers

  • The decision shows that the courts will take a robust approach towards employees if there is any evidence to show that they might have participated in industrial action.
  • Employers faced with unofficial industrial action will be able to dismiss employees where there is evidence that they may have participated in the action or merely have absented themselves from work without prior authorisation or explanation. In such circumstances, the employees have no right to claim unfair dismissal.