The Strikes (Minimum Service Levels) Bill: appetite for destruction

Posted: 13/02/2023

This article first appeared in the January/February 2023 issue of PLC Magazine.

The government’s Strikes (Minimum Service Levels) Bill is currently working its way through Parliament against a chorus of outrage from opposition parties and trade unions.

While the government insists that the measures are necessary in the face of current waves of industrial action, the opponents argue that the bill tramples over the ability of trade unions to organise effective industrial action and that the proposed measures contained in it are unlawful.

The operation of the bill

The architecture of the bill is straightforward: it runs to just five sections and a schedule that implement changes to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The provisions will then be augmented by regulations which will specify areas in which minimum service levels (MSLs) must be provided. The relevant collective parties are given the opportunity, before MSLs are imposed on them, to:

• negotiate and reach a voluntary minimum service agreement on MSLs (MSA);
• provide for circumstances in which the MSA can be changed;
• include enforcement arrangements to ensure that parties follow due process in their negotiations.

If the collective parties fail to negotiate an MSA, the secretary of state will be able to specify what the MSLs are for a particular sector through regulations. Currently, there are no indications as to what will amount to MSLs.

In practice, the way in which the bill is proposed to work is that, where a notice of industrial action (NIA) is served by a trade union under section 234A of the TULRCA in relation to an MSL service, within seven days following the date of the NIA, or such later time as may be agreed between the collective parties, the employer will be able to counterserve a written work notice.

The work notice will specify what levels of service are to apply in relation to the strike by reference to both the staff that are required to meet those levels and the work needed to be carried out by them in order to do so.

Relevant sectors

The sectors to which regulations may apply are limited to the following categories, mirroring the definition of 'important public services' introduced by the Trade Union Act 2016:

• Health services
• Fire and rescue services
• Education services
• Transport services
• Decommissioning of nuclear installations and management of radioactive waste and spent fuel
• Border security

Each service being an minimum service level service.

Sanctions

If a union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with it, sanctions may apply including:

• The union’s immunity from liability in tort that would otherwise apply under section 219 of TULRCA will be removed and the employer will be able to seek remedies in the form of injunctive relief or damages or both against it. Damages will be limited to cover only losses that are incurred as a result of the union failing to comply with the obligation to take reasonable steps. Damages will not extend to losses that would have been suffered by the employer in any event due to the effect of industrial action, which is likely to be difficult to quantify.
• The right to claim automatic unfair dismissal for participation in official industrial action under section 238A of TULRCA (section 238A) will be removed from those employees who are subject to a work notice but participate in the strike contrary to that work notice, provided that, before the strike day, their employer has given the employee notice of the work specified in the work notice that they are required to carry out on the strike day and a statement that they must comply with that work notice.

Objections and questions

Unsurprisingly, a number of the unions who may be affected by the bill have objected to it, with the National Union of Rail, Maritime and Transport Workers referring to it as 'an attack on human rights and civil liberties' and Unite referring to it as a 'dangerous gimmick'. Leader of the Opposition, Sir Keir Starmer, has pledged to repeal the bill in the event that the Labour party forms the next government.

While the Secretary of State, Grant Shapps, has stated that, in his view, the bill is compatible with the European Convention on Human Rights (ECHR), that view is certainly questionable. The European Court of Human Rights (ECtHR) has previously confirmed that an effective right to withdraw labour is part and parcel of Article 11 of the ECHR (Article 11), which protects the right to freedom of peaceful assembly and to freedom of association with others (Enerji Yapi-Yol Sen v Turkey [2009] ECHR 2251). The use of MSLs will also undoubtedly prevent workers from freely exercising their right to organise under the International Labour Organisation’s (ILO) Freedom of Association and Protection of the Right to Organise Convention 1948 (ILO Convention 87).

Further, in Ognevenko v Russia, the ECtHR held that dismissing an applicant after participating in a strike constituted a disproportionate restriction of the applicant’s right to freedom of association under Article 11, which protects the right to strike (case no 44873/09). Notably, the ECtHR also held that railway services are not essential services, and that restrictions on transport workers’ right to strike under Article 11 would be disproportionate and therefore contravene Article 11. Accordingly, following Ognevenko, removal of the protection provided to striking employees under section 238A through the bill may well transgress Article 11.

In addition, while the ILO Conventions are not part of the UK’s domestic law, failing to comply with them may be a breach of Article 399(2) of the EU-UK trade and co-operation agreement, which obliges the UK to respect, promote and effectively implement the internationally recognised core labour standards defined in the ILO Conventions.

Ultimately, even if the UK courts do not accept that the bill contravenes Article 11, it is still open to the ECtHR to determine otherwise and it is notable that the UK has a poor track record in relation to industrial rights claims before the ECtHR.

On the basis of the current stance of the trade unions that have commented on the bill, and their current desire for confrontation with the government, it seems likely that, even assuming the bill passes through Parliament, the matter will pass to the courts for consideration and the longer term position may be the quashing of its provisions. Indeed, a cynic might say that the bill is little more than a short-term political fix, unlikely to last beyond the next general election, and designed to show that something is being done to address the fall-off in public sector service provision due to strikes.

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