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Strikes (Minimum Service Levels) Bill: an examination of how work notices could work in practice

Posted: 27/03/2023

The Strikes (Minimum Service Levels) Bill provides that for any prescribed service in which a minimum service level (MSL) has been set, an employer would be able to serve a work notice to its recognised trade unions setting out which employees are required to work during a strike, to ensure those minimum service levels are met.

A minimum service level is the level of functioning that workers must guarantee during a strike. MSLs can vary by sector meaning comparisons will be used in legal disputes over the reasonableness of the MSL.

‘Reasonable steps’

In serving the work notice, an employer would be required to consult with the union about the number of workers identified on the notice, and the work to be specified in the notice. Whilst there is no legal right to strike in the UK, the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects unions from civil legal action in response to lawful strikes.

However, under the draft bill, if a union fails to take ‘reasonable steps’ to ensure that its members identified in a work notice comply with that notice, the union would lose its protection under TULRCA, and may face civil legal action, with damages for the larger unions now being up to £1 million.

Collaboration is likely

So, from the outset, in workplaces where more than one union is recognised, the employer and its recognised unions will have to collaborate, for reasons of data protection compliance, regarding which employees identified in the work notice are members of which recognised union.

Further, the employer and its recognised unions will have to collaborate regarding work arrangements, such as shift patterns, for the duration of the strike. A union cannot take the required ‘reasonable steps’ unless the employer sets out the proposed work arrangements for the identified employees, in order to provide the prescribed MSLs. 

Forced labour arguments

It is foreseeable that we will see forced labour arguments being made by those employees identified in the work notice, especially if it is disputed that the MSL goes above and beyond an essential service to ensure that the life, health and personal safety of the population is adequately safeguarded. This could bring to the foreground the fact that police officers across the UK are currently banned from taking strike action under the Police Act 1996.  Prison officers are also banned from striking under the Criminal Justice and Public Order Act 1994. The bill effectively means that those identified on a work notice are in the same position, which marks a major departure from the current limitations on the right to strike.

Consultation will be essential

In the context of a strike, it is unlikely that an employer will be prepared to leave it to the union to consult with the employees identified in the work notice. It is more likely that, to avoid the employer and the union being at loggerheads with each other with the identified employees stuck in the middle, they will collaborate as part of the ‘reasonable steps’ expectation, to seek to ensure that those identified in a work notice comply with that notice.  After all, an employer that elects not to collaborate should be prepared for unions to argue that the employer has prevented it from taking ‘reasonable steps’, to protect itself from future legal action.

Those employees identified in a work notice will need to be carefully advised of their rights. A warning that, if they elect to strike with their colleagues who are not identified in the work notice, they would no longer be protected from automatic unfair dismissal, despite having voted to strike and presumably not wanting to cross a picket line, is unlikely to be well received. 

This is likely to raise the tensions associated with the existing dispute that led to the strike.  Failure to give due regard to this could send an unwanted message regarding the value the employer places in its workforce, especially as those identified in the work notice are likely to be key employees.

While the draft bill does not provide an obligation on the employer and the trade unions to reach agreement, in reality the employer will need to do far more than ‘have regard to the views expressed by the union in response’. Ultimately the employer needs a ‘deal’ to end the strike action, meaning it will want to keep the unions at the negotiating table. Contentious work notices and a robust employer approach risk further exacerbating tensions and prolonging the dispute.

What if the employer and the unions simply cannot mutually agree a work notice?

An employer who responds to a striking employee failing to cross a picket line with a dismissal, and launches a civil action against the trade union, is adopting the nuclear option. Consider the employee relations risks of secondary industrial action and/or public order issues in solidarity for employees dismissed for refusing to obey a work notice and cross the picket line.

A wise employer will want a way out of this predicament, as failure to appreciate the human impact on a union member having to cross a picket line to keep their job will surely play out badly in the ‘court of public opinion’ on social media. Brand reputation and pressure from key stakeholders will also come to the fore.

A way out?

Under the draft bill, the Secretary of State would be given the powers ‘to make regulations providing for levels of service where there are strikes in relevant services’, meaning the power to act unilaterally to impose MSLs, rather than requiring an agreement between workers and employers. If an agreement cannot be reached on the number and type of posts that need to be filled to provide a MSL, then rather than the employer unilaterally proceeding with a work notice and all that entails, why not publicly call on the Secretary of State for a review of the MSL to be provided during the strike, by taking into account the representations of the employer and trade unions?

Some commentators are critical of the Secretary of State being granted these powers in circumstances where the more neutral Central Arbitration Committee could make an independent determination on whether the proposed MSL is proportionate to ensure the life, health or personal safety of the whole or part of the population, whilst respecting the human right of freedom of association.

But having the power does not mean it is appropriate for the Secretary of State to stand by if the regulations setting the MSLs are making labour relations far more contentious. For instance, a Conservative politician insisting on what MSL is provided, in what will surely be a high-profile labour dispute being played out in the media, will be mindful of the political consequences for their party and themselves.

A Secretary of State will surely want to avoid being politically exposed in this way. On the other side of parliament, it is entirely understandable why Labour’s position is that it would repeal this law if enacted. A Labour politician would obviously be conflicted given Labour’s association with the trade unions.

If the draft bill is enacted, then there is a strong argument to be made that a Conservative Secretary of State will want the political safety of being seen to have no option but to hold the line on the MSL. This means other dispute resolution options will need to have been tried first.

A politically astute Conservative Secretary of State will want the parties to be utilising ACAS to conciliate, or engaging in mediation or intensive talks facilitated by the Secretary of State, before the Secretary of State takes on the political, social and economic consequences of breaking the impasse by imposing an MSL. After all, when introducing the draft bill, Grant Shapps stated that the hope was to reach agreed minimum service levels “that mean that we don’t have to use that power in the bill”, ie sacking employees for not obeying a work notice.

Importance of the ECHR

Further, while there is no right to strike in the UK, under Article 11 of the European Convention on Human Rights (ECHR) – to which the UK is a signatory – everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of their interests. The ECHR has determined that Article 11 can extend to protection of the right to strike at the national level.

Whilst restrictions may be imposed on the right to strike of workers providing essential services to the population, the state must justify its necessity. This is where the penalties against trade unions for a failure to ensure their members obey a work notice, and the lack of safeguards against potential abuse, will surely mean that a Conservative Secretary of State will have to be mindful of the UK’s international obligations as a signatory of the ECHR. After all, leaving the ECHR to overcome this issue has far reaching consequences. The UK’s trade agreement with the EU could be immediately terminated if the UK quits the EHCR. It is highly likely we will see the unions litigating about this when the draft bill becomes law, which is the expected outcome of the parliamentary process.

Watch this space

Assuming that the UK will not quit the ECHR, this leaves the Secretary of State little room other than to revisit the MSL if employers and trade unions cannot reach agreement, so that the work notice process is effective in delivering the prescribed MSL.

Currently, the draft bill does not define MSLs. The government is at present consulting on MSLs for fire, ambulance, and rail services and hopes not to have to use these powers for other sectors included in the bill. However, subject to any changes, the bill gives the Secretary of State a full and final power to decide if and when MSLs should be set, and the ones that are set. With that comes an expectation that unworkable MSLs will be reviewed.

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