Employers who disproportionately punish striking workers may be acting unlawfully, according to new research from the University of East Anglia.
Making unreasonable deductions from the wages of workers who are, for example, on a ‘work to rule’ or who have refused to make up time for work lost during a strike could mean the employer was in breach of contract. Deductions from pay that represent more than the cost or loss to the employer – the hours taken to catch up, for example – might well constitute a violation of that worker's human right to strike and take industrial action, said Prof David Mead of UEA’s School of Law.
Such circumstances could mean “the employer – not the employee – was in breach of contract, by breaching the implied term to treat their employees with trust and confidence,” said Prof Mead, Professor of UK Human Rights Law.
Prof Mead is the author of ‘We’re miles apart – Disproportionate deductions from wages, industrial action, and human rights’, published today in the Industrial Law Journal.
Currently, the UK is facing strikes across the public sector, something not seen for several decades. Workers who take industrial action remain very exposed – and if plans to legislate for minimum service levels transpire, workers will be threatened further.
“Human rights law is quite clear that it remains lawful to deduct a day’s pay for a day’s strike. But where an employer threatens to make full or excessive deductions for any worker who decides to ‘work to contract’, the employer might be open to legal challenge,” Prof Mead said.
A series of House of Lords and Court of Appeal decisions in the late 1980s established that an employer can deduct full pay for any employee who is not willing to perform the contract in full.
In one case, a local government official refused to respond to queries from the public for the duration of industrial action. Clearing the backlog once it ended took only a few hours, yet the Court of Appeal held that it was lawful for the employer council to withhold payment in full for the duration of the dispute.
“The findings outlined in this article challenge and revisit that orthodox position in light of the Human Rights Act, for the first time,” Prof Mead said.
“It suggests that human rights law might offer workers in similar positions a way to resist such deductions, and thus to strengthen their hand in industrial disputes over pay and conditions.”
‘We’re miles apart – Disproportionate deductions from wages, industrial action, and human rights’, published 23 January 2034 in the journal Industrial Law Journal.