Strikes and picketing

01 January 2016

Updated January 2016

Gives introductory guidance on strikes and picketing. Explains how strike action can be considered a breach of contract, special rules for unfair dismissal during strike action, work to rule, the role of trade unions, picketing and secret ballots. Also includes a checklist for employers of the issues to consider when they are the subject of a threat of industrial action and key takeaways.

Employees who engage in strike action are in fundamental breach of their contracts of employment and an employer is entitled to treat participation in strike action as bringing the contract to an end. However, if the employees give their employer notice of the strike action, and the notice is of a period equivalent to that required to terminate their contracts, then the courts have said that the contracts remain suspended during the strike and so there is no breach.

The Supreme Court has said that there is an implied term in every contract of employment that employees may lawfully give strike notice and that this notice suspends the mutual obligations of the parties, namely the obligation on the part of the employee to attend work and the obligation on the employer to pay.

Where employees are dismissed while taking part in a strike or other industrial action, special rules regarding unfair dismissals apply. The unfair dismissals legislation says that a dismissal is unfair if it is based on an employee’s involvement in a strike or other industrial action, and: 

  • one or more similar employees of the same employer have not been dismissed or
  • a similar employee has been offered re-engagement after their dismissal and the employee has not been offered re-engagement.

If an employer does not dismiss all relevant employees or selectively re-engages some of those dismissed, the employee will be able to claim unfair dismissal. Non-selective dismissals are subject to the general presumption of unfairness set out in section 6 of the Unfair Dismissals Acts and the onus is on the employer to show it behaved reasonably and in compliance with its own dismissal procedures and any ministerially approved Codes of Practice.

Where employees are attending work but only partially carrying out their duties due to industrial action, they have no right to be paid at all if the employer has made it clear that partial performance will not be accepted. Before an employer can do this, however, it must genuinely refuse to accept partial performance. If the employer accepts partial performance, the courts will, at best, only allow it to deduct an amount representing the nominal value of the services which the employee has not performed and may stop it from making any deductions at all.

Trade unions do not have a right to strike. Rather, they are given immunity under the Industrial Relations Act 1990 from certain actions and wrongs (torts) committed, provided certain conditions are met. Trade union immunity is only given to acts done in contemplation or furtherance of a trade dispute. To qualify as a trade dispute, a dispute must be between workers and employers, and relate to employment or non-employment and/or terms and conditions of employment.

Where a dispute relates to the terms or conditions of employment of an individual worker, and there are agreed procedures for the resolution of individual grievances, the immunities granted under section 11, 12 and 13 of the Industrial Relations Act 1990 apply only where those procedures have been exhausted.

Picketing will only be lawful if it is carried out in contemplation or furtherance of a trade dispute and its purpose is to peacefully obtain or communicate information or to peacefully persuade any person to work or to abstain from working. Any action which goes beyond this will not be classed as lawful picketing and will expose the union which has organised the action to potentially liability.

Secondary picketing

In general, picketing must be carried out at or near the place where the employer works or carries on business. The picketing of an employer other than the one directly involved in the dispute is lawful and protected so long as it complies with the standard requirements in relation to picketing and the picketers reasonably believe, at all times, that the subject of the secondary picketing directly assisted the employer in frustrating the strike or other industrial action.

Employers' remedies

Where a trade union authorises or endorses industrial action and immunity is lost for whatever reason, anyone who suffers loss as a result of the action (such as employers or customers of the employers) has a right to certain remedies. The remedy most commonly sought is a High Court injunction requiring the union to withdraw that authorisation and to ensure that its members are not induced to take part in industrial action. Damages for the loss suffered may also be sought.

Where a trade union authorises industrial action, the employer may seek an injunction against that union to prevent, for example, a picket from continuing. Trade unions, however, are protected against the grant of interim or interlocutory injunctions provided that, among other things, they have held a ballot prior to the action starting. The rules on what comprises an effective ballot for these purposes must be strictly adhered to.

Section 14 of the Industrial Relations Act 1990 requires trade unions to include in their rules a provision which obliges them to conduct secret ballots of their members prior to engaging in strike action. The following rules of good practice should be adhered to in balloting situations: 

  • All members of a union who it is reasonable to believe will be called upon to take industrial action must be entitled to vote.
  • The union must take reasonable steps to ensure that members can vote without interference or constraint by the union or any of its members, officials or employees, and that members are given a fair opportunity to vote.
  • Voters should be asked whether they are prepared to take part in a strike or action short of a strike, whichever of the two is relevant.
  • The majority of those voting must answer yes to the appropriate question.
  • A union may not pose one question covering both types of action.

The Supreme Court has held that, where a letter notifying members of the fact that they are to be balloted does not specify the course of action to be taken on foot of a positive result or where the ballot paper does not specify the proposal being voted on, the action may be injuncted. As soon as practicable after the ballot, the union must take reasonable steps to inform those people entitled to vote of the number of: 

  • ballot papers issued
  • votes cast
  • votes in favour of the proposal
  • votes against the proposal
  • spoilt voting papers.

Despite a majority vote in favour of industrial action, the controlling authority of a trade union has full discretion whether or not to call a strike or other industrial action. Trade unions must give employers at least seven days’ written notice of industrial action. If they do not, their picket or other action may be injuncted.

The following is a checklist for employers of the issues to consider when they are the subject of a threat of industrial action:

  • Has a ballot been properly held in advance of any picketing taking place? A secret ballot must be organised which involves notifying members of the ballot and holding the ballot. If a majority of the voting members vote in favour of industrial action then, before notice of the industrial action can be served on the employer, the decision to engage in industrial action must be sanctioned by the Irish Congress of Trade Unions (ICTU).
  • Has adequate notice been provided of the strike action? Strike notice of at least one week should be served on the employer, once a secret ballot has been properly held and the majority of the voting members have voted in favour of industrial action.
  • Is there a genuine trade dispute – a dispute between worker(s) and employers relating to employment or non-employment and/or terms of and conditions of employment?
  • Does the dispute relate to the terms or conditions of, or the employment of, an individual worker? If so have all the internal dispute resolution mechanisms been exhausted?
  • Is the picketing lawful and peaceful? This applies to secondary picketing also.

Where picketing is unlawful an employer can seek injunctive relief.

Do not dismiss an employee if the dismissal is based on their involvement in a strike or other unlawful action without taking legal advice.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.