In recent days, both the Post Office and the fire service have been hit by unofficial industrial action, as was British Airways a couple of months ago as a result of its controversial attempt to introduce swipe cards at a number of airports.

Many smaller employers are unsure of the difference between official and unofficial action. However, the difference is extremely important, as whether the action is official or unofficial determines whether or not the employer may dismiss a participating employee.

The law relating to industrial action is complex to say the least. In simple terms, unofficial action is action which is not authorised or endorsed by a trade union. A trap for the unwary here is that action does not have to be endorsed by the union's ruling executive or even by a full-time union employee to be official.

For example, if action was called by a shop steward, a union would be deemed to have authorised this - even if the required ballot had not been held and the shop steward was in breach of the union's own rules. Such action would become unofficial only if and when it was formally repudiated by the union.

It is also worth remembering that the definition of industrial action is not limited to strikes, but also includes working to rule, overtime bans and the like.

Generally speaking, an employee who participates in unofficial action has no right to claim unfair dismissal except in certain limited circumstances. In most cases he can therefore be safely dismissed. Employees engaged in official action, on the other hand, have the right to a protected period during which they cannot be fairly dismissed for participating in the action.

For the first eight weeks of an employee's participation in official industrial action, it will be automatically unfair to dismiss him as a result of his participation. Even after the initial eight-week period, a dismissal may still be automatically unfair if the employer has failed to take reasonable steps to resolve the dispute.

The moral here is to tread carefully. The distinction between official and unofficial industrial action is crucial. Seek professional advice at an early stage and in any event before proceeding to dismissal.

Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 18/11/2003