While a number of the strikes which have taken place in the last year have been resolved successfully, the continuing train strikes are a reminder of the power of unionised workers to strike in order to try to come to an agreement with their employers on matters such as wages.
In response, the UK Government has introduced the Strikes (Minimum Service Levels) Bill (the “Bill”) with the aim of enabling the government to introduce minimum levels of service during strike action across certain sectors. The government intends to use the Bill to ensure that critical services can function during a strike while also guaranteeing the safety of the British public. If the Bill receives Royal Assent, trade unions or employees who do not comply with minimum service requirements may lose protections against being sued or unfairly dismissed.
Background
The current position in the UK
In the UK, the law governing industrial action is a combination of contract, delict, and statute law. Part 5 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA ”) sets out the current statutory provisions for a strike, including peaceful picketing and the protection from certain tort liabilities. Police officers, armed forces members, and certain prison officers are not permitted to strike, and in line with section 240 of the TULRCA, it is an offence to strike in the knowledge or belief that human life may be endangered or serious injury will be caused. More recently, the Trade Union Act 2016 introduced the idea of important public services, which extends to health, education of those aged under 17, fire services, nuclear decommissioning and management of nuclear waste, transport, and border security. In such services, there is a threshold requirement of 40% of eligible voters in order to legally strike.
On an international level, Article 11 of the European Convention on Human Rights and Convention 87 of the International Labour Organisation protects an individual’s right to freedom of assembly and association in the UK.
Introduction of the Bill
The Transport Strikes (Minimum Service Levels) Bill 2022-23 (the “Transport Bill”) introduced the possibility of minimum service levels in the transport sector. After the introduction of the Transport Bill in October 2022, there was a noticeable rise in strikes across various sectors, which could be attributed to the ongoing cost-of-living crisis and proposed pay awards that failed to keep up with inflation. The Transport Bill did not receive a second reading in the House of Commons as it was superseded by the Bill, which would be applicable to these wider sectors.
This resulted in the introduction and first reading of the Bill on 16 January 2023 by former Secretary of State for Business, Enterprise and Industrial Strategy, Grant Schapps. Mr Schapps stated that the government did not wish to use the legislation unless it must, but that it had to “ensure the safety of the British Public” by limiting strike action in services beyond transport. The Bill was initially unamended by the House of Commons. Once it had proceeded to its first reading in the House of Lords, several amendments were made. This included:
a) The requirement for a consultation before specifying minimum service levels (“MSLs”);
b) Removing the right of employers to dismiss employees for their failure to adhere to a work notice; and
c) Removing the right of employers to take legal action against a trade union which has failed to reasonably ensure compliance of work notices by employees.
The above amendments have since been rejected by the House of Commons, and the Bill entered a ‘ping pong’ process between the House of Commons and the House of Lords in an attempt to come to a mutually acceptable position. The Bill is now at the consideration of amendments stage, which is the stage before receiving Royal Assent.
As employment legislation is not devolved to the Scottish Parliament, the Bill will apply throughout the UK. While the Scottish Government has announced that it would not issue or enforce any work notices under the Bill, Scottish employers who are not linked to the Scottish Government and operate in the Bill’s sectors may still use its provisions.
The impact of the Bill
The six sectors covered by the Bill are health, education, fire and rescue, transport, border security, and nuclear decommissioning and radioactive waste management services. The Bill would insert a new section (234B(1)) into the TULRCA to allow the Secretary of State to make minimum service regulations for strikes in the covered services. To take effect, these regulations would need approval from both Houses of Parliament. While the government has made assurances that consultations will be made with the impacted sectors to decide what the MSLs will be, in the event, that the parties cannot agree, the decision will be made by the UK Government unilaterally. So far MSL consultations have been held with the ambulance, fire and rescue, and passenger rail services in recognition of the severe disruption the public faces when these services are negatively impacted by strikes.
Where a strike occurs in a service where the regulations apply, following consultation with the trade union, an employer may give workers a “work notice” which identifies workers who are not authorised to strike. The work notice will also specify any work which must be completed while the strike is taking place. The employer must serve this notice a week before a planned strike unless a later date is otherwise agreed with the relevant trade union. In terms of who can be identified on the work notice, the number of workers identified must not exceed what is reasonably necessary to meet the MSL regulatory requirements. The Bill does not define “reasonably necessary” however, the employer is obligated to consult with the trade union prior to work notices being issued to determine what is reasonable to meet the requirements. If the Bill becomes law, it is important for employers to acknowledge this need for collaboration as they must “have regard to the views expressed by the union”. In terms of confidentiality and data protection, the Bill confirms that naming employees in the work notice will not breach any obligation of confidence owed by the employer and/or any other restriction on the disclosure of personal information.
If the Bill receives Royal Assent in its current form, trade unions will have an obligation to take reasonable steps to ensure that workers have complied with a work notice. Where the union has not met this obligation, they may lose their immunity from tort liability (‘delict’ in Scotland), provided currently by the TULRCA . This could authorise an employer to seek an interim injunction (‘interim interdict’ in Scotland) to restrain the strike; or to claim damages in the event that the strike proceeds.
In terms of employees’ rights, the Bill would alter protections from unfair dismissal. Under section 238A of the TULRCA , where an employee takes place in a lawful strike, dismissal during the 12-week period from the first day of the protected industrial action would be automatically unfair. The Bill would remove this protection in circumstances where an employee took place in a strike despite being identified on the work notice. The employee will, however retain their ordinary right to not be unfairly dismissed.
Opinions on the Bill
While the UK Government has suggested that the Bill strikes a balance between protecting the public’s right to strike and ensuring critical services can adequately function, organisations such as Liberty have stated that the Bill is a “power grab” to weaken the basic rights of employees.
In terms of UK human rights obligations, the Joint Committee on Human Rights and the Equality and Human Rights Commission have published advice highlighting that the Bill may not be compatible with Articles 4 (prohibition of slavery), Article 11 (freedom of assembly and association), and Article 14 (prohibition of discrimination). There are also suggestions that the Bill may have a larger impact on women and ethnic minorities as they are over-represented in the sectors covered by the Bill.
Letters have been sent to the UK Government openly criticising their almost unrestricted power to determine what will constitute as a MSL. An open letter signed by 50 organisations objecting to the Bill was published in January 2023, and not long after a joint statement signed by 121 politicians spanning from 18 countries was published, further criticising the Bill’s limitations on employees’ rights. The latter involved politicians from countries such as Ireland, France, Germany, Italy, Spain and Australia.
Consequences for employers
Where an employer operates in a sector covered by the Bill, its implications for both the employer and employee are extensive, particularly the requirement for employers to collaborate with unions and the employee’s obligation to adhere to a work notice. The impact is arguably larger for employees and trade unions as if they believe the work notice is too wide, the only option to challenge it involves putting themselves at significant risk of being dismissed or sued respectively. Given the criticisms of the Bill, its operation may lead to an increase in human rights-related claims by employees.
As amendments proposed on the Bill await further debate, it is unclear what the Bill’s true impact on industrial action in the UK will be. Given the abundance of strike action in the last year, it can be assumed that the Bill will continue to spark controversy in the near future.
If you are facing industrial action from a unionised workforce or would like further advice on any potential legal implications of the Bill on your business, please speak to a member of the Shepherd and Wedderburn employment team
This article was co-authored by, Hannah Bartlett, summer student in our employment team