Update: Proposed measures to limit strike action to be expanded

In our recent blog we touched on the Transport Strikes (Minimum Service Levels) Bill 2022-23 (the “Transport Strike Bill”) which proposes to require a minimum service level operates during transport strikes. The Transport Strike Bill has now been superseded by the Strikes (Minimum Service Levels) Bill 2022-23 (the “Strike Bill”), which was introduced to Parliament on 10 January 2023.

What has changed?

The Strike Bill goes further than the Transport Strike Bill in that it would enable the government to regulate for minimum service levels in more sectors than just transport. The following sectors are included in the Strike Bill’s proposal:

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

The Strike Bill would also provide that minimum service levels may be applied to any strike on any day, even if notice of the strike was given on or before that day. This means that regulations could be applied to strike action, irrespective of when an employer is notified of the strike. Each day of a strike would be treated as a separate strike date, thus enabling an employer to issue individual work notices for individual strike dates even if the strike as a whole runs for multiple days.

The Transport Strike Bill proposed a formal process whereby employers and trade unions would have to take reasonable steps to come to an agreement within three months of formal negotiations starting. As part of that process there was also a proposed requirement to notify the Central Arbitration Committee (“CAC”) of when formal negotiations began. If after two months of formal negotiations no agreement had been reached, the Transport Strike Bill proposed that parties make a joint application to CAC to make a declaration which would be binding on parties (save for certain circumstances where any declaration may be amended). If CAC made a determination and a party contravened a requirement, the Transport Strike Bill proposed to permit a penalty notice to be issued by the Employment Appeal Tribunal. The Strike Bill makes no such provision for any such procedure.

What would be the impact of the Strike Bill?

For workers, the Strike Bill makes clear that there would be no automatic protection from unfair dismissal for a worker who is identified in a valid ‘work notice’ (requiring them to work during strike action in order to meet minimum service levels) but participates in the strike action.

Trade unions could be liable to civil court proceedings if they fail to take reasonable steps to ensure that their members (who have been identified by a valid ‘work notice’) comply with a ‘work notice’. This could result in a court awarding damages against trade unions, or an injunction to compel or prevent certain conduct.

Where a trade union induces workers to take industrial action which amounts to a breach of their employment contract, the union may commit the tort of inducing breach of contract.

Whilst current legislation (the Trade Union and Labour Relations (Consolidation) Act 1992) already sets out certain protection for workers and trade unions during strike action, as well as consequences of not following proper procedure to commence a strike, the primary impact of the Strike Bill would be the introduction of minimum service levels being required during any such strike action. This has the potential to substantially curb the impact of strike action, which is positive news for the general public relying on those public services but will no doubt be detrimental to trade unions’ negotiating leverage which ultimately impacts workers providing our public services.

Comment

We expect to see significant resistance to the Strike Bill from trade unions as well as from the Labour party, which has described the Strike Bill as “insulting and utterly stupid”. We will likely see challenges on human rights grounds too, in particular Article 11 of the European Convention on Human Rights, which protects the right to form and join a union. Whilst the Strike Bill does not prevent workers joining a union, it may be argued that the restrictions will dissuade workers from striking which may be argued to unlawfully curtail workers’ rights to express their demands freely.

As ever, we will keep you updated on developments as they progress.

If you would like to discuss any of the matters raised in this blog, please contact Elliot Francis or any other member of the Employment team.

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