The Strikes (Minimum Service Levels) Bill, published earlier this year shows the measures the Government intends to implement so as to tackle the impact of increased striking action seen over the past 12 months.

It looks like the Government intends to mirror the statutory instruments already present in other countries such as France and Spain, so that employers affected by industrial action can take measures to keep minimum service levels in place. This would, in effect, work by serving ‘notices’ to trade unions identifying the individuals required to work and specifying the work which such individuals are required to undertake. 

Trade unions criticise the Bill

Trade unions have used the media to criticise publicly the bill and suggest that ensuring minimum service levels will not only affect the fundamental impact of striking, but incentivise employers not to engage with unions, and ultimately lead to more dismissals resulting from trade union activity. 

What are the current laws on strike action - what actions are unions prevented from taking?

The lawfulness of striking action is heavily legislated and contained primarily within the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULCRA’). ‘Lawful’ striking refers to organised industrial action that complies with strict rules. Trade unions must provide employers with notices and details of ballots, notices of industrial action and contain the strike to specified periods. In short, trade unions must heavily communicate with employers so as to effect strikes and if they don’t comply with the requirements, or they endorse unlawful strikes, employers may bring tortious action in the civil courts. Commonly, courts may injunct, or prevent, unions from inducing a breach of contract (by asking or encouraging employees not to work in breach of their contracts), or from compelling employers to act in a certain way.

The Strikes (Minimum Service Levels) Bill intends to insert new wording into TULCRA so that employers and unions must agree minimum service levels during period of industrial action. It acts as another pre-condition of the strike action being organised lawfully, so that trade unions may have tortious liability if they do not comply with the minimum service levels. This will only apply to vital public sectors such as health services, education, fire and rescue services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. 

What has been the Government’s reaction?

The Government has tried to ease fears of the Bill impacting the effect of striking action by saying that the measures will only be used if minimum service levels cannot be agreed first with the unions. During recent strikes, such conversations have taken place as unions understand the need for continuation of key medical and transport services, while wanting to ensure that the strike has impact. The Government asked the unions on 5 January 2023 to meet to discuss the correct approach to industrial action moving forwards. 

What about the workforce: how will they be impacted?

If the legislation is enforced, trade unions and employees may take issue with being forced to work when they wish to participate in the striking action. Unions may have less bargaining power in ongoing negotiations if they feel that the action is not disrupting ‘business as usual’ so as to incentivise employers to engage with them.  From an employee rights perspective, unions will view the legislation as intending to limit their right to carry out successful strikes. If unions do encourage an employee to work when that employee has been identified as needing to ensure minimum service levels, then unions could also be taken to court by employers.

Considering the wider impact, recruitment in affected sectors could see a reduction if employers do not feel the need to recruit additional workers, who previously would have indirectly guaranteed that there is adequate work coverage. Whilst this is beneficial from an employer’s viewpoint, it may mean that there are less jobs available in the rail and care industries. The impact of this, however, will be longer-term and depend on the Government’s usage of the legislation.

Might there be challenges to the legislation?

Well, the Government has taken action in the past to attempt to limit the impact of industrial action. In 2022, it passed legislation to allow employers to recruit agency workers to alleviate staffing gaps. Previously, there had been limits on employers having this ability. Unison and TUC have launched a judicial review against the Government to stop them implementing such legislation, on the basis that the regulations undermine a worker’s fundamental right to strike. The challenge is being heard by the High Court in May 2023.  It is entirely feasible that the lawfulness of the Strikes (Minimum Service Levels) Bill could be questioned on the same grounds.

Will the Bill pass through Parliament?

The Bill is rapidly progressing through parliament, having passed through the House of Commons on 30 January 2023, and is currently being considered by the Committee Stage in the House of Lords. During the second reading on 21 February 2023, Baroness O’Grady made it clear that the Labour Party would be opposing the Bill, and the Liberal Democrat Baron Fox heavily criticised the Bill. We will need to see if the Bill progresses to its third reading and final stage in the House of Lords.

Does this change an employee’s ability to strike without risking dismissal?

The legislation proposes to insert new wording into 238A TULCRA, saying that an employee can only be protected from dismissal where the protected industrial action was a strike relating to a provision of the relevant service, and the employee was:

• not an identified worker in relation to that strike; or
• an identified worker in relation to that strike and did not participate in the action except to the extent that they complied with the work notice

The proposed wording indicates that should an employee strike when the employer has identified them in the notice as being required to work, to ensure minimum service levels, then they can be lawfully dismissed. Employees can only be protected from unfair dismissal if they strike lawfully and were not identified by their employer as being required to work, or only strike as far as permitted expressly by the work notice. This is highly likely to upset employees who have strong beliefs or desires to strike but cannot do so because of their employer’s notice requiring them to work. If such employees do choose to strike regardless of a notice under the Act – and we can see the possibility of this happening - they may face lawful dismissal situations.