Gwenan White | Trainee Solicitor

What is the Strikes (Minimum Service Levels) Bill, and how will it affect me?

On 10 January 2023, the UK Government introduced the Strikes (Minimum Service Levels) Bill 2022-23 to Parliament. The Bill, which has had its first reading in the House of Commons this week, will allow the Government to set certain minimum service levels during a strike.

The Bill is said to ‘ensure crucial public services such as rail, ambulances, and fire services maintain a minimum service during industrial action, reducing risk to life and ensuring the public can still get to work’. 

The intention of the Government had previously been to introduce the legislation to implement minimum service levels in specific transport services during strikes. It was intended to require employers and trade unions to negotiate these minimum service levels, with a power for the Central Arbitration Committee (CAC) to adjudicate if an agreement could not be reached within three months. However, amid increasing industrial action across a range of public sectors, the Government now seeks to introduce wider legislation covering health, education, fire and rescue, nuclear, and border security services, as well as transport. 

How will the Bill affect you?

For millions who rely everyday on public transport, are particularly concerned about accessing crucial emergency services, or have school-aged children, the Bill may well be welcome news that the Government are seeking to introduce minimum standards that striking workers will have to meet.

The Introduction of Work Notices

For those working in the affected sectors, this new requirement to meet minimum service levels will add to the current rules that important public services have to comply with under the legislation governing trade unions (Trade Union and Labour Relations (Consolidation) Act 1992). Many would say that the current legislation, introduced as a result of significant industrial action in the 1980s, already places extensive restraints on the ability of workers to take industrial action.

The Bill, if enacted, will allow the employer to give a union who has given notice to the employer of a strike, the right to issue a ‘work notice’ before the strike. This notice would identify the workers that are required to work and the work that they are required to do during the strike in order to meet the ‘minimum service levels’. The legislation will require the employer to consult with the union in advance of serving the notice, and should not identify more workers than are ‘reasonably necessary’.

Loss of Immunity

The union will also lose its immunity from delictual liability (tort in England) if it fails to take ‘reasonable steps’ to ensure compliance with the work notice by union members. It is thought that this loss of immunity may result in more applications by employers for anti-strike interdicts to prevent the strike from going ahead. The employer would also be able to sue the union for any damages caused by any failure of the union to take ‘reasonable steps’.

Loss of Unfair Dismissal

At present, employees taking part in industrial action have certain protection against dismissal (a worker cannot be dismissed for taking part in industrial action). However, workers who are identified in the work notice but nevertheless go on strike will lose this protection and may be fairly dismissed (subject to the usual rules of unfair dismissal).

Comment

Whilst we will not know the specific impact of the legislation until it passes through both houses of parliament, the legislation may be cause for concern for trade unions and those workers taking part in strikes. On the other hand, the rules seem designed to create more stability at a time when the public is feeling the impact of growing industrial action.

It is notable that whilst the original intention had been to allow employers and unions to negotiate these minimum service levels, the legislation is set to give the Government a blanket power to prescribe such service levels. Although the Government has stated that they do not anticipate using the power if voluntary agreements are put in place, some have commented that this will give the Government an unfettered power to set standards that unions and its striking workers will be bound by.

Whilst the legislation requires that employers only include employees on a work notice that are ‘reasonably necessary’, the Bill as currently drafted creates no effective way for a union to actually challenge the notice in advance of the strike. The removal of union immunity and individual worker protection under the unfair dismissal legislation is also likely to increase employer’s ability to challenge strike action, and take action against workers captured under ‘work orders’ who choose to strike.

The TUC has released a statement calling the Bill ‘undemocratic, unworkable, and almost certainly illegal’.

The second reading debate is schedule for 16 January 2023.  

Gwenan White

Gwenan White

Dispute Resolution Team

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