"Tackling hidden retaliation for strike participation: Examples of legal protection from detriments short of dismissal"
Abstract
For workers, employer retaliation represents a major threat in response to their participation in a strike. While dismissal is the most visible form of such retaliation, it can also take more ‘hidden’ forms, such as demotion, disciplinary sanctions or withdrawal of voluntary overtime. Addressing a notable gap, protections from detriments short of dismissal are expected to be introduced into UK law by the soon to be enacted Employment Rights Act. The purpose of this brief is to situate the United Kingdom (UK) within a broader set of comparative examples of how the law protects workers from detriments short of dismissal for participation in a lawful strike in eight other European countries (Belgium, Croatia, France, Germany, Italy, Portugal, Spain and Sweden). The analysis produces several key findings of relevance to policymakers: • The legal framework should make sure that it considers all the different dimensions of protection to ensure solid and broad legal protection as gaps in one area can undermine the entire system. • Countries with broad protection typically rely on open-ended legal norms, such as prohibiting all acts ‘harming’ or ‘discriminating’ against workers or barring any ‘other prejudicial treatment’, rather than a closed list enumerating all prohibited detriments.• Proving the link between a detriment and strike participation can be difficult for a worker, especially if the test is highly restrictive. To address this, many countries provide for a reversal of the burden of proof and legal presumptions favouring workers.• Most countries offer a broad range of remedies, combining nonmonetary and monetary remedies.• The law in most countries makes it possible for trade unions to bring claims for detriment short of dismissal, in addition and/or behalf of affected workers, acknowledging the collective harms of such detriments and the risk of individual workers' reluctance to take legal action due to fear of job loss.
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