“Self-evidently, the Act violates the right to strike, a right established by many international treaties which the UK has ratified.”

Professor Keith Ewing and Lord Hendy KC write in-depth on The Strikes (Minimum Service Levels) Act 2023 becoming law.

‘Neither Wanted Nor Helpful’

The Strikes (Minimum Service Levels) Act 2023 became law in July, following a lengthy fight in the House of Lords.  Imposing yet further restrictions on the right to strike, the legislation is appalling both in form and content. As to form, it defies every legislative principle laid down by the relevant Parliamentary Committees which examined what was then the Strikes (Minimum Service Levels) Bill before it finally received the Royal Assent.

To begin with, it is a ‘skeleton Act’ meaning that it simply gives the government legal powers to introduce regulations setting out the detail of what should have been in the Act itself. So the Minister, in drafting the regulations, has the unilateral power to fix the minimum service levels in each of the six sectors covered by the Bill (largely the applauded workers who kept the country running during the pandemic).

The sectors in question are wide and far reaching and cover potentially millions of workers and affect most major unions:  health services, fire and rescue services, education services, transport services, nuclear decommissioning, and border security. In making regulations ministers can consult whoever they think appropriate: there is no specific obligation to negotiate with or even consult the unions and employers who are directly affected by the Act.

The fact that no-one yet knows what the minimum service levels in these different sectors will be, or even how they will be set, is one reason why the Government’s accompanying Impact Assessment of the Bill was held by Parliament’s Regulatory Policy Committee to be ‘not fit for purpose’. Nevertheless, the Impact Assessment contained the revealing analysis that, far from diminishing the disruption strikes inevitably cause, the Bill could lead to:

“A general increase in tension between unions and employers. This may result in more adverse impacts in the long term, such as an increased frequency of strikes for each dispute.”

Indeed, since in the current strikes the unions typically will have negotiated local minimum service levels with the employers (as they always do in many of the sectors involved), the imposition of national levels set by government is likely to upset the delicate negotiated balance and intensify the dispute. This is why so many employers, like all the unions, told the government the Act was neither wanted nor helpful.

‘Never before have our unions been obliged to act as enforcers on behalf of employers and the State’

Otherwise, two provisions stand out so far as the content of the Bill is concerned, First, once a minimum service level is set for a particular sector, an employer facing a strike in that sector can serve a ‘work notice’ on the union. The effect of a work notice – which will also be communicated to workers affected personally – will be to compel individual employees to work during the strike. And, if they do not, the Act removes their right not to be unfairly dismissed. This means they can be subject to instant dismissal with no redress.

Secondly, once served with a work notice a union will be required ‘to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.’  So the union has to force its members to break the strike it has called and for which its members voted. And if the union fails to take such ‘reasonable step’s, the strike will cease to be lawful, all strikers will then cease to have unfair dismissal protection (not just those specified in a work notice) and the union will lose its protection against claims for damages and injunctions.

Our labour law has rightly been described as ‘the most restrictive on trade unions in the Western World’, but never before have our unions been obliged to act as enforcers on behalf of employers and the State. The position is made worse by the fact that no-one knows what ‘reasonable steps’ are: do they, for example, include ordering members identified in a work notice to cross picket lines, and disciplining members who refuse to do so?  The government is yet to publish a promised Code of Practice to help ‘clarify’ the position.

Self-evidently, the Act violates the right to strike, a right established by many international treaties which the UK has ratified. Parliament’s Joint Committee on Human Rights had made this clear at an early stage in the parliamentary life of the Bill. The government claims that international law permits minimum service levels to be set by law. But, though true, international law permits them only in exceptional circumstances and subject to tightly regulated conditions.

These conditions include a requirement of trade union and employer dialogue in the setting of an MSL; an obligation on the employer to negotiate an agreement with the trade union about the service level to be operated in that firm or service; and, finally, an independent adjudication process (by the courts or agreed independent arbitrators) in the event of a failure to agree. None of these conditions is met by the Act, with the result that it clearly breaches ILO Convention 87.

“Repeal of this Act must be an early priority of a Labour government.”

Repeal of this Act must be an early priority of a Labour government. It passed despite criticism from a host of parliamentary committees, and despite resistance from the House of Lords. The latter had proposed number of important amendments to the Bill, none of which the government was prepared to accept. But although, ironically, it was the unelected House of Lords which sought to defend trade union freedoms, as Mick Whitley MP said in the Commons, ‘no amendments could ever salvage this Bill’.

Pending repeal, unions will be considering whether the awaited minimum service level regulations can be challenged in the courts. In doing so they will have been encouraged by the recent High Court decision striking down regulations to enable agency workers to be used as strike-breakers. According to the court, the government’s failure to consult was ‘so unfair as to be unlawful and, indeed, irrational’.  We can expect a wide range of legal objections to the regulations under this Act.

More immediately, however, unions will be seeking to work around the legislation, persuading employers to agree not to serve work notices and, instead to negotiate voluntary minimum service agreements, as usual. They will also be considering other ways of exerting industrial pressure, for example by taking other forms of industrial action than strikes since the Act only applies to strike action. Industrial action is unlikely to decline, but its form may radically change as a result of this Act.