Key points

  • Section 235(4) of the Employment Rights Act 1996 defines lock-out as meaning 'the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment'.
  • Section 238 of the Trade Union & Labour Relations (Consolidation) Act 1992 cautions that an employment tribunal will not entertain a complaint of unfair dismissal from any employee if, at the time of his (or her) dismissal, his employer was conducting a lock-out affecting him and other workers unless the employee can show that one or more relevant workers had not been dismissed, or that one or more of them had been offered their jobs back within three months of his own dismissal, but that a similar offer had not been made to him.
  • This means, in effect, that the only way an employer can avoid a complaint (or complaints) of unfair dismissal in such circumstances is to dismiss every worker involved in the dispute that prompted the lock-out and not to re-employ any of those workers within three months of the date on which the last worker was dismissed. 
  • However, it must be remembered that, in order to bring a complaint of unfair dismissal, an employee must have been employed for a continuous period of one year or at the effective date of termination of his (or her) contract of employment. He must also have been under normal retiring age at that time. There are, on the other hand, circumstances in which an employee can pursue such a complaint regardless of his or her age or length of service at the material timeThe meaning of the terms 'effective date of termination' and 'normal retiring age' are also explained in that section.
Lock-outs and continuity of employment
  • Absence from work because of a lock-out does not break the continuity of a period of employment. However, days 'lost' because of a lock-out (ie, the number of days lost between the last working day before the lock-out began and the day on which work was resumed) must be discounted when computing an employee's total period of continuous employment. This is done by postponing the beginning of the employee's period of continuous employment (that is to say, the date on which employment began) by the number of days falling within that intervening period (1996 Act, sections 211(3) and 216(3)).