| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Can You Dismiss Staff for Taking Part in a Strike?
There’s increasing talk of a ‘summer of discontent’, with widespread public sector strikes in prospect. Most employees’ wages are failing to keep pace with inflation, which rose to a 40-year high of 9.1% in May, according to the latest Office for National Statistics figures. Growing numbers of both public and private sector workers may now look to industrial action to try and obtain a better pay deal. Here, we look at what rights striking staff have and when it’s lawful to dismiss them.
When an employee refuses to work for you, this is a breach of their employment contract and you can normally dismiss them without notice. However, dismissing an employee for taking part in an official, lawful strike (or industrial action short of a strike, such as refusing to work overtime) will amount to unfair dismissal.
For a strike to be lawful and for employees to receive protection from dismissal:
- Their trade union must properly ballot its members and a majority must vote for strike action (see below).
- The union must give you a detailed notice about the strike at least 14 days before it begins.
- The strike must be about the employees’ own terms and conditions. ‘Sympathy’ or ‘secondary’ action in support of workers taking action against another employer isn’t protected.
Understand Striking Workers’ Rights
These are the key rules that apply when employees take part in lawful strike action:
- You must not force the striking employees to stay at, or return to, work.
- You don’t have to pay them while they’re on strike.
- The strike action will not break their continuous employment. However, you can reduce workers’ length of service by the number of days they were on strike. This will affect their pension and things like statutory redundancy pay.
- The striking employees are protected against dismissal for 12 weeks. If you dismiss them within this period, this will be automatically unfair. If they stop striking within the 12-week period, you can’t wait 12 weeks and then dismiss them – this will also be automatically unfair.
- If employees have been on strike for more than 12 weeks, they lose their automatic unfair dismissal protection. However, you must have taken reasonable steps to settle the dispute (for example by negotiating with the union or bringing in Acas to help find a solution), otherwise the dismissals will still be automatically unfair.
- Any dismissals after 12 weeks will be unfair unless you dismiss everyone who was still on strike and don’t offer to re-engage any of them.
- Non-union members who take part in legal, official industrial action have the same rights as union members not to be dismissed as a result of taking action.
Understand the Balloting Rules
These are quite complex and you may be able to obtain an injunction to stop the strike going ahead if the union has failed to follow the rules. Among other things:
- The union must hold a secret postal ballot.
- The ballot must be open to all members who the union wants to take action.
- The union must give you 7 days’ notice of the start of the ballot and tell you the result as soon as possible.
- At least 50% of affected workers must turn out for the ballot. In most sectors, a majority of those who vote must then be in favour of the strike for it to go ahead. So if 100 workers are balloted, at least 50 must vote, of whom at least 26 must vote ‘yes’. However, if most of those balloted perform an important public service (education, fire, health, transport or border security), at least 40% of those entitled to vote must approve the industrial action. For example, if 100 nurses are balloted, 50 must vote, of whom 40 must vote ‘yes’ for the action to be lawful.
- The strike must start within 6 months of the ballot or within 9 months if both sides agree.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Reminder: Primary Threshold Changes on 6 July 2022
Employers are reminded that the starting point for employees’ National Insurance contributions (known as the ‘primary threshold’) changes with effect from 6 July 2022, and that they may need to update their payroll software packages to give effect to the change.
New Primary Threshold
From 6 July 2022, the primary threshold is aligned with the standard personal allowance of £12,570. From that date, the point at which employees pay Class 1 National Insurance contributions is increased to £242 per week (£1,048 per month).
For the period from 6 April 2022 to 5 July 2022, the primary threshold is set at £190 per week (£823 per month).
It is important that the primary threshold that is used is the one corresponding to the date on which the payment is made. Where the payday falls before 6 July 2022, the primary threshold is £190 per week (£823 per month). Where the pay day falls on or after 6 July 2022, the new primary threshold of £242 per week (£1,048 per month) should be used. Under no circumstances should the new higher primary threshold be used for payments made before 6 July 2022.
Update Your Payroll Software
Employers should check whether they need to update their payroll software to take account of the change. Employers who use Basic PAYE Tools, which is HMRC’s free payroll software package for employers with nine of fewer employees, will need to download an update prior to processing payments where the payday falls on or after 6 July 2022. The update is available on the Gov.uk website.
Annual Threshold for Directors
Company directors have an annual earnings period for National Insurance purposes, regardless of their actual pay interval. This means that their National Insurance is worked out for the tax year as a whole on a cumulative basis by reference to the annual thresholds.
As the primary threshold changes mid-year, the annual threshold for 2022/23 is £11,908 (rather than £12,570). This is equivalent to 13 weeks at £190 per week and 39 weeks at £242 per week (and equates to a weekly threshold of £229).
The annual primary threshold of £11,908 should be used to work primary Class 1 contributions for directors. Where the alternative arrangements are used (so that the director pays National Insurance each week or month on the same basis as for other employees), the liability should be recalculated on an annual basis using the annual primary threshold of £11,908 at the time that the last payment for the year is made.
No Change to the Secondary Threshold
It should be noted that it is only the primary threshold that changes in July; there is no change to the secondary threshold, which remains at £175 per week (£758 per month; £9,100 per year). Likewise, the lower and upper earnings limits are unchanged, remaining at, respectively, £133 per week (£533 per month; £6,396 per year) and £967 per week (£4,189 per month; £50,270 per year) throughout the 2021/22 tax year.