Strike law puts UK at odds with international legal standards

Following the bill introduced to parliament on 10 January 2023, the Strikes (Minimum Service Levels) Act received Royal Assent on 20 July 2023. 

Background

A summary of the original bill was set out in a Gazette article published on 20 January 2023. 

The passage of the act through parliament was not straightforward, with numerous amendments proposed by the Lords.  Most were overturned by the Commons, so the act is largely unamended from its original form. 

In short, the act now permits the secretary of state to make ‘minimum service regulations’ for strikes in ‘relevant services’, namely: health; fire and rescue; education; transport; nuclear decommissioning and the management of radioactive waste and spent fuel; and, border security. This means that where a trade union calls a strike in a relevant service to which the regulations apply, the employer can send a ‘work notice’ to the union identifying workers required to work during the strike and what work they must do. The employer must first consult with the trade union and must not identify more workers than are ‘reasonably necessary’ to meet the minimum service. The trade union must take ‘reasonable steps’ to ensure compliance with the work notice by all union members identified or else it will lose its immunity in tort. Additionally, any worker identified in a work notice will lose protection from ‘automatic’ unfair dismissal if they strike in a way that breaches the work notice.

Concerns and controversies

One critical feature is the unprecedented scope for intervention by a relevant secretary of state in the collective bargaining arrangements made between employers and trade unions. Aside from the impact on industrial relations, the act would operate in sharp contrast to the methods proposed in the Transport Strikes (Minimum Service Levels) Bill. That bill appears to have been abandoned by the UK government, but it would have required employers and trade unions to negotiate the minimum service levels first, with a power of independent review by the Central Arbitration Committee before any intervention could be made by the relevant secretary of state. The role of the independent arbitrator is a key consideration with any comparisons between the UK and international legal systems that permit minimum service levels, such as Spain, Italy and France.

Additional concerns arise from the speed at which the act was made, in just over six months, albeit without changes to accommodate the observations of external expert bodies explained below.

It is important to highlight that the minimum service regulations have not yet been introduced since the act came into force and a clearer picture of how the rights of trade unions and workers are affected will depend on what those say.  The scope of relevant services and the minimum service regulations are subject to a duty to consult by the relevant secretary of state. 

Three separate consultations have taken place for minimum service levels in ambulance services, fire and rescue services and passenger rail services. Yet, the relevant impact assessment and memorandum on compliance with the European Convention on Human Rights (ECHR) were only published after these consultations commenced and more than a month after the bill was first introduced. 

Criticisms on timing and quality of government’s assertions 

The Regulatory Policy Committee gave its opinion that the impact assessment was ‘not fit for purpose’ on 23 February 2023. The ‘red-rating’ reflected the insufficient assessment of the impacts on small and micro businesses. It also highlighted that further impact assessments were expected for any secondary legislation enabled by the act.

The Joint Committee on Human Rights (JCHR) conducted an inquiry that sought evidence from expert trade union law academics and practitioners. In its report of 6 March 2023, the JCHR highlighted concerns about compatibility with the UK’s human rights obligations for trade unions and workers. It also proposed amendments to the bill that would have mitigated against the legal risks and was informed by the expert evidence received. Shortly afterwards, the Equality and Human Rights Commission (EHRC) published a note warning that careful consideration needed to be given to interference with Article 4 ECHR (forced labour), Article 11 ECHR (freedom of association) and Article 14 (prohibition on discrimination). 

Both the JCHR and EHRC made the point that striking workers will be left acutely vulnerable. Aside from the uncertainty on which situations mean they have failed to comply with a work notice, before participating in strike action, the workers may not know their protection against dismissal has been lost because their trade union has failed to take reasonable steps to ensure compliance. 

The act sours industrial relations, but it also puts the UK at odds with international legal standards. Following representations made by the Trade Unions Congress (TUC) and others to the International Labour Organization (ILO), on 14 June 2023, the ILO reported an invitation to offer ‘technical assistance’ to the UK government to ensure that current and future legislation complies with the ECHR. Most employment experts agree this was a reference to the act and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 that were recently quashed by the High Court in a case brought by UNISON and other trade unions. 

It remains to be seen whether the act will stand up to scrutiny in future or if it might suffer a similar fate to recent strike-breaking legislation. 

Bruce Robin is legal officer and in-house solicitor for Unison