The controversial Bill introduced by the government on 10 January 2023 proposes to radically reform the landscape of industrial action in the UK and goes much further than the similar Bill introduced by the short-lived Truss government in 2022, which would have applied only to transport services.
The concept of obligations to maintain minimum service levels in certain sectors or industries exists in certain other European countries but is legally and politically contentious. The Bill is highly likely to face a legal challenge by UK unions as well as industrial action in protest against it.
Key features of the Strikes Bill
- It will apply to the following services: health, fire and rescue, education, transport, nuclear decommissioning and nuclear waste management, and border security. In each case, the Secretary of State may make Regulations clarifying what is covered e.g. would transport services only extend to the rail sector, or to bus, maritime and other services too?
- It envisages that the Secretary of State will also make Regulations setting out the relevant minimum service levels, without any process of consultation between either government or employers on the one side and the relevant unions on the other. In other words, levels could be unilaterally imposed, which is only likely to increase the tension between the parties to a dispute. In contrast, the Truss government’s Bill envisaged that employers and unions would consult for up to 3 months with a view to agreeing service levels. How the Secretary of State will be able to set out sufficiently detailed service levels that are capable of implementation and adaptation to local and changing circumstances remains to be seen.
- The new Bill does not provide for recourse to the Central Arbitration Committee in the event of a dispute over compliance.
- Once such Regulations have been made, the Bill would apply to strikes already balloted for or notified to the employer – unusually, therefore, it is partly retrospective in effect.
- In order to trigger minimum service levels during a strike, an employer would have to give notice no later than 7 days before the strike was due to start.
- If a union does not take reasonable steps to ensure that minimum service levels are provided during a strike:
- it loses its statutory protection from being sued by employers (or other affected parties); and
- employees who should have provided them but did not lose unfair dismissal protection if dismissed as a result.
Commentary – What the Strikes Bill means for UK industrial action
As well as being something of a political gamble by a government faced with extremely high levels of strike action in the public and private sectors, the Bill is likely to face a legal challenge by trade unions on the grounds that it infringes rights under the European Convention on Human Rights, particularly the right to freedom of assembly and association under Article 11 of the Convention. The English courts have previously held that Article 11 protects the right to strike. The government could be expected to argue that the measures introduced by the Bill have a legitimate aim and are necessary in a democratic society and so do not contravene Article 11, but whether the courts will agree is a different matter.
Unions can already lose their statutory immunity in other circumstances, but claims against them by employers are rare for a number of reasons and are likely to remain so even if this Bill passes into law: unions do not have large amounts of assets making them worth suing; their liability in many circumstances is capped by statute according to the size of the union; it may be difficult to establish the exact amount of loss caused by the failure to provide a minimum service level; and, of course, suing your adversary in a dispute may only make it worse.
The removal of unfair dismissal protection is a potentially potent weapon/threat in the Bill. Currently, employees who take part in “protected” strikes (i.e. strikes which have been organised in accordance with the law) would be unfairly dismissed if the reason for dismissal is their participation in the strike (subject to certain time conditions). Remove this and employees could be fairly dismissed on conduct grounds for failing to come to work on strike days. In some cases, dismissal could be a feasible, although highly inflammatory, approach by an employer, where it has alternative workers that it could bring in; but in many cases it will simply not be practicable.
The Bill will have to go through the normal stages of scrutiny by both Houses of Parliament before it becomes law and in our view is likely to be amended in some respects during this process.
For more information on this topic, please contact Blair Adams.