Have confidence to take action

One consequence of UNISON organising the largest co-ordinated strike ballots in the history of the country is that tens if not hundreds of thousands of members are receiving ballot papers for the first time in their lives.

And they are therefore reading, for the first time, the statutory form of words which such ballot papers must bear, which warn that strike action is a breach of contract.

This has, of course always been true. There is no legal "right to strike" and - until the introduction of the legal concept of "unfair dismissal" in the 1970s, strikers could (legally) be dismissed on the whim of the employer (as workers generally could, albeit with a right to notice pay if they weren't in breach of contract by striking).

Once unfair dismissal law arrived, employers wishing to sack strikers could only protect themselves from claims of unfair dismissal from the sacked strikers if they dismissed all of them and did not re-engage any for at least 90 days.

As the anti-union laws of the Thatcher - and Major - years tightened their grip, this protection was restricted only to workers taking lawful official action, in respect of which the union had complied with all the new legal requirements in relation to balloting and notification.

New Labour introduced further protection for official strikers, removing the "sack them all" option for employers initially for eight and latterly twelve weeks from the commencement of action. Even after these periods the employer would only be safe from unfair dismissal claims if they could show that, before dismissing every striker, they had taken reasonable steps to resolve the dispute.

The recent introduction of the eight - and now twelve - week "protected period" has created a new dilemma about how to communicate with members in dispute when these periods expire, a subject addressed recently in more than one official UNISON dispute and to which I will return in future posts.

However, the answer to the question "can I be sacked for striking on 30 November is an unequivocal "no".

The anti-union laws require individual postal ballots in order to depress both turnouts and voters, confronted alone and in the privacy of their home with the question "do you want to breach your contract?"

We need to give members a sense of our collective strength to empower them to vote "YES" and to give them the confidence to take action on 30 November and beyond.

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