If we go on strike, are we protected from dismissal?

It depends on whether the strike was a form of 'protected industrial action'. Although a strike, or other form of industrial action, is a breach of contract of employment, which would normally give the employer the right to terminate, dismissal would be unfair if the action was protected.

This would be the case where the action had been called lawfully i.e. there had been a secret postal ballot, notice given to the employer, a majority in favour, etc.

Dismissal of employees engaged in protected industrial action is unfair:

• during the first 12 weeks of the lawful industrial action;
• if the employee stopped taking part in the industrial action during the 12 week period and is dismissed for taking part during that period;
• after 12 weeks from the start of the action, and where the employer has not reasonably attempted to use a procedure for settling the dispute.

If the employees are locked out (i.e. prevented from returning to work), this 12-week period will be extended (by one day for every day that the employee was locked out).

For these purposes, the date of dismissal will be either the day on which notice of dismissal was given, or the effective date of termination (whichever is sooner).