Neil Todd, a partner in Thompsons Solicitors’ Trade Union Law Group (TULG), discusses the Strikes (Minimum Service Levels) Bill – the latest in a string of anti-union attacks from the government.
The Strikes (Minimum Service Levels) Bill, laid before Parliament on 10 January, would allow employers to serve ‘work notices’ on trade unions organising industrial action in relevant services where the government has set minimum service levels.
The Bill is far more sweeping than the government first suggested, and could impact those working in:
- fire and rescue;
- decommissioning of nuclear installations and management of radioactive waste and spent fuel; and
- border security.
If a union does not take ‘all reasonable steps’ to ensure that its members identified in the work notice comply and attend work, when they would otherwise have been taking industrial action, it is at risk of being sued. The employees themselves who are identified also face losing unfair dismissal protection and will be at risk of being fired if they don’t comply.
The only requirement of the Secretary of State on making ‘minimum service regulations’ in the sectors identified above is that they consult ‘such persons as they consider appropriate’ before reaching a decision as to what any minimum service level should be.
What is a ‘work notice’ and what will unions have to do to comply?
A work notice would identify the employees required to work, and what work will need to be performed during the strike in order to meet the minimum service level. Employers will be able to serve these on the union no later than seven days before the strike action is due to begin.
Before giving a work notice, the employer is required to consult the union about the number of employees required to work and what work needs to be performed during the strike. However, the employer has no obligation to follow any representations made by the union over this.
If the union is judged to have not taken reasonable steps to ensure its members adhere to the work notice, it will risk losing its immunity from being sued. It is still unclear exactly what taking “reasonable steps” will require in practice.
What will this mean for union members engaging in strike action?
Any worker identified in the work notice as being required to perform work to meet the minimum service level, who fails to do so, would lose the protection of s238A TULRCA. This provision ensures that any dismissal for taking part in protected industrial action is unfair if it takes place within the first 12 weeks, and may be unfair if it takes place after that period elapses.
Is the new Bill legal?
The proposals in the Bill ignore international labour standards the United Kingdom has signed up to.
The introduction of minimum safety levels does not, in our view, comply with the United Kingdom’s legal obligations under Convention No.87 of the International Labour Organisation on Freedom of Association and Protection of the Right to Organise, and Article 11 of the European Convention on Human Rights.
The fact that there is no limitation on what minimum service might be required, no requirement to agree it with other stakeholders and no mechanism by which it has to be referred to a third party if no such agreement can be reached makes clear, if there was any doubt, that this is a thinly veiled political act by the government to grab headlines, limit the power of unions and restrict a vital right of working people.
We are not alone in holding this view. The parliamentary Joint Committee on Human Rights (JCHR), in a Report on the Bill published on 6 March 2023, makes clear it does not believe the government has made the case that the new provisions are compliant with the UK’s Human Rights obligations.
In a highly critical assessment, the JCHR - which has MPs and Peers on it and more Conservatives than Labour - made a number of points which reflect our arguments above. For example, it stressed that the requirement for trade unions take “reasonable steps” to ensure its members comply with work notices did not provide sufficient clarity for trade unions to know what would be required of them. It was particularly concerned with the lack of any limits on the level of service the Secretary of State may impose as being the necessary minimum in the event of industrial action. It also felt the categories identified were extremely broad with inadequate evidence there was a “pressing social need” for imposing minimum service levels and it would be better if minimum service levels were determined through negotiation and independent resolution.
The government has two months to respond to the JCHR Report and when it does we will see if it is prepared to change course and halt its naked assault on trade unions and working people.