Unfair Dismissal and Unofficial Industrial Action

Under Section 237(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, an employee has no right to complain of unfair dismissal if he or she was taking part in an unofficial strike or other unofficial industrial action at the time of their dismissal. However, a claim of unfair dismissal brought by an employee who was dismissed for having taken part in unofficial action after they had ceased to do so will be determined by ordinary unfair dismissal law.

In Gate Gourmet London Ltd. v Sandhu and others, the Employment Appeal Tribunal (EAT) heard six conjoined appeals by employees who were dismissed during a dispute in August 2005. This received a lot of publicity at the time, not only because of the disruption caused to the company but also because of the knock-on effect it had on the travel plans of 100,000 passengers at Heathrow Airport, who experienced delays when British Airways baggage handlers came out in sympathy with the Gate Gourmet workers.

Gate Gourmet operated a business at Heathrow preparing airline food. The dispute arose because of widespread discontent among the workers because the company engaged a large number of seasonal staff. A number of employees stopped work in protest and gathered in a staff canteen. All those present were warned that they were liable to be summarily dismissed if they did not return to work but most remained and were told that they were dismissed. Over the following days, there were further dismissals of employees who were absent without leave and who were believed to have taken part in the industrial action. In the end, over 600 employees were dismissed. Whilst some staff were re-hired, many were not.

Numerous employees brought unfair dismissal claims, most of which were either settled or withdrawn. The six claimants in this case had their claims dismissed either on the basis that the Employment Tribunal (ET) had no jurisdiction to hear them because the employees were participating in unofficial action at the time of their dismissal or because the dismissals were judged to be fair in the circumstances.

The EAT dismissed the appeals.

In the case of employees who argued that they were not taking part in the action but had attended the protest meeting in their capacity as trade union officials in order to try to resolve the dispute, the EAT found that whilst this might have been their initial role, this changed when those present were told to return to work. Failure to do so meant that they were by this time plainly participating in the action.

In the case of those who were absent without leave and who the company believed had taken part in the illegal industrial action, the EAT ruled that the ET was entitled to find that their dismissals by Gate Gourmet were procedurally and substantially fair. The 1977 case of Simmons v Hoover, which is authority for the proposition that an employer is entitled to summarily dismiss an employee who refuses to work, is still good law. In the EAT’s view, in circumstances such as this ‘where large numbers of employees deliberately absent themselves from work, in a manner which is plainly liable to do serious damage to the employer’s business, it seems to us plain beyond argument that dismissal of those taking part in the action will be within the range of reasonable responses, even where the absence is … not very prolonged’.