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David Reade KC and Martin Palmer provide topical commentary on the recent Minimum Service Level Bill


Strikes (Minimum Service Levels) Bill 2023

Typically commentary on these pages is reserved for legislation which has reached the statute book.  Considered and mature reflection being the order of the day undertaken in that pre-dawn period before the legislation takes effect. However, the supercharged speed (and febrile political atmosphere) with which the Strikes (Minimum Service Levels) Bill (the “Bill”) is progressing may not offer the luxury of time for such reflection.

The Bill was introduced into the Commons on 10th January 2023 and it has already passed through its second reading stage on 16th January 2022. If the Bill passes into law and the regulations it empowers the Secretary of State to make are promulgated, it will even impact on previously balloted industrial action as the Act will apply to any strike which takes place on a day after the regulations under the Act come into force. The time for reflection may be limited but it does not take a clairvoyant to see trouble ahead.

The Bill itself is short.  Significantly, it reserves to the Secretary of State the power to amend any prospective primary legislation which is passed in the current parliament (the so-called ‘Henry VIII Power’), previously the talking point of the legislative debate surrounding Brexit. This is explained further below.

The key is to be found in the Schedule to the Bill which sets out the proposed amendments to Part 5 of the Trade Union and Labour Relations (Consolidation) Act 1992, (“TULR(C)A”), to restrict the protections afforded under TULR(C)A for striking workers and for trade unions inducing such industrial action where provision has been made in consequential regulations for minimum levels of service.

The regulations are limited to specifying minimum levels of service within any of the following workplace categories (but without further definition under the Bill)

  • health services
  • fire and rescue services
  • education services
  • transport services
  • decommissioning of nuclear installations and management of radioactive waste and spent fuel
  • border security

The devil, they say, is in the details; unfortunately the Bill presents very little by way of details. The intended scheme it aims to set out appears simple on its face but the powers which are bestowed on the Secretary of State to make regulations consequential upon the Act are potentially very wide.  This prompts amongst the Bill’s critics, concerns as to the range of amendments that are likely to be made to TULR(C)A as well as opening the door to the possibility of legal challenges.  The powers reserved to the Secretary of State includes, as noted above, the power to amend, repeal or revoke provision made by or under primary legislation whether passed before or after the Act comes into effect.

Turning to the limited details that we do have, first the Bill does not set out what the minimum service levels might be. That is left to the Secretary of State to define together with, one must assume, the precise scope of the categories and which job roles amongst health service or education workers might be caught. There is a requirement for the Secretary of State to consult before making the regulations, but only with such persons as the Secretary of State considers appropriate. That consultation may be undertaken before the Bill passes into law. The regulations setting out the minimum service levels have to be approved in draft by a resolution of each House of Parliament but the current political environment and comments from Government ministers (as well as the Prime Minister) point to the breakneck speed of implementation of the Bill and the regulations being maintained.

The schema advanced by the Bill envisages amendments made by the Bill to TULR(C)A to enable an employer within the prescribed categories where regulations are made providing for a minimum service level to give a “work notice”, to a trade union which has given notice of industrial action pursuant to s.234A of TULR(C)A relating to the provision of the stipulated service. The word is may and there is no obligation on the employer to give the notice. A “work notice” does not extend to action short of a strike, such as an overtime ban or other form or work to rule.

The employer’s work notice (as envisaged) must then:

  1. identify the persons required to work during the strike in order to secure the minimum levels of service specified under the regulations. This appears to require the identification of persons whom may be named individuals. They must be identified without regard as to whether or not they are members of the trade union. Although presumably an employer is most likely to identify those employees whom it believes will be taking industrial action or are most likely to be taking industrial action; and
  2. the notice must specify the work required to be carried out by those individuals during the strike to secure that the stipulated minimum levels of service are provided.

There is an obligation on the employer not to identify “more persons than are reasonably necessary” for the purpose of providing the levels of service under the minimum service regulations.  However, this gives an employer considerable discretion to adopt a subjective assessment as to the level of resources required to perform the level of service stipulated.  For example, the Bill currently provides no criteria as to how the employer would determine those workers subject to a duty to work under a ‘work notice’. It only states that they should not be included because of union membership. This will undoubtedly be a point of dispute with the prospect of challenge to the reasonableness of the notice. As noted below, there is scope for the variation of notices and support for strikes can wax or wane. But inevitably practical problems will emerge as to how the notices are compiled and operated.   For example, does the employer specify the individuals regardless of the numbers who might have chosen to return to work or be expected to be at work regardless of the industrial action? Or it does it have regard to the lesser number of workers who it considers on an evolving basis will have to be compelled and serve a varied notice?

Before giving the notice, the employer is obliged to consult with the trade union about the number of persons to be identified but that is not with a view to reaching agreement with the union.  This is an important feature and reflects the differences between the reality of employer/trade union relations in the UK and elsewhere in Europe.  We mention this because, of course, the Government has made much of comparative legislation requiring minimum service levels in other European jurisdictions and the overall compliance with International Labour Organisation (“ILO”) standards.    So, as envisaged by the Bill, the employer is only obliged to have regard to any views expressed by the union in response to the consultation.  One can see, however, that where the timescales are tight (within the current provisions of TULR(C)A), the prudent employer is likely to be well advised to consult with the relevant trade unions in advance of the giving of the strike notice in the hope of reaching agreement as to the form and content that the notice will take so to avoid legal challenges.  Unions may equally want to make advanced preparations for their dealings with employers in order to achieve effective industrial action (where agreement cannot be reached) whilst at the same time avoiding the risks for them and their members of losing protection.

The “work notice” must be served no later than the 7th day before the commencement of the earliest strike date to which the notice of industrial action given by the union relates. There is further provision for the service of an amended notice in respect of a specific strike date before the end of the 4th day before the strike date. There is then the ability reserved to the employer, who is now faced with imminent continuing action, to take a conservative view of the numbers to be specified in the original notice but to vary the notice if it did not achieve the required minimum service level. Even in the case of continuing (i.e., continuous or ongoing) industrial action, each day of the action is treated as a separate strike date. Consequently there are likely to be successive work notices.

If a “work notice” is given to a union, it loses the protection from civil action afforded to it in inducing a person to take part, or to continue to take part, in the strike if it has failed to take “reasonable steps” to ensure that all members of the union who are identified in the “work notice” comply with that notice.  Taking one step back, what might those reasonable steps be? A call by the union to persons or role holders identified in the notice to attend and undertake work?  Would this call be backed by the threat of a union disciplinary process if the identified workers do not act on the union’s direction?  Ultimately a trade union has no power to compel one of its members to comply with the terms of their contract of employment and attend work. Whilst the loss of protection would open the union to a claim for damages the more likely prospect would appear to be an injunction to restrain the union from inducing those named individuals from striking. But how would the Court define the positive (or negative) measures to be taken and order the union to take reasonable steps? How can the trade union conceptually compel performance when the employer itself cannot seek the intervention of the Court to secure an order to compel specific performance or otherwise implement performance of the worker’s contract, s.236 TULR(C)A.

For the named individuals in the employer’s notice, if they do not work as required by the terms of that work notice, they will lose their protection against dismissal whilst taking part in industrial action under TULR(C)A. It would appear to be open to those workers to challenge the reasonableness of the work notice in the same way as their trade union. There is, of course, the practical point that the notice will by necessity have identified key workers for the delivery of the minimum service whom the employer may be reluctant to dismiss if there is a labour or skill shortage. If dismissals take place, but the strike continues, the employer presumably has to serve an amended notice naming new workers.

All of the above provides fertile ground for disputes before one considers the prospect of wider legal challenges. In advancing the Bill, the Secretary of State has stated under section 19(1)(a) of the Human Rights Act 1998 that the provisions of the Bill are compatible with the Convention rights on introduction of the Bill.   A brief survey of reactions to the Bill shows that others may take a different view of the restrictions being placed by the Bill upon the rights under Article 11 to freedom of association.  It is important to remember in this regard the decision of the ECHR in Demir and Baykara v Turkey Article 11 has been interpreted to include the right to strike. Equally under Convention 87 of the International Labour Organisation (ILO), the UK is obliged to secure freedom of association embracing the right to strike. This does not mean restrictions on the right to strike are not permissible, there are of course already limitations in the UK including for example prohibitions in the case of Police officers and the armed forces (which derive from longstanding statutes). But the imposition of any restrictions on the right to strike ultimately involves a balance within the margin of appreciation afforded to the permitted restrictions under Article 11(2).  Whilst it is true that in other European States minimum service provisions have been enacted, for example in France, Spain and Italy the issue is how that balance has been struck. Again, one comes to the different nature of industrial relations in the UK to other European jurisdictions.   It is not possible with any degree of felicity to compare how labour relations function in France or Germany as proof and support for the Bill as being no more than reflecting the provision for minimum service levels in place in those countries. By adopting such a lazy comparison, the Secretary of State and the Government would appear to have set the ground for legal challenges.  It is also foreseeable that the Government’s purported reliance upon ILO standards is likely to come into play.

Although not the mainstay of everyday discussion for UK employment lawyers, it is to be noted that spirit and letter of ILO standards place emphasis upon consensual determination and application of minimum service levels by the parties to the employment relationship – i.e., the employer/employer bodies and trade unions rather than the imposition of Government intervention through legislation.   In particular, the ILO standards attach significance to the involvement of ‘the social partners’ in the negotiation of minimum services. This envisages negotiated settlement between the parties and the standards requiring that ‘both sides must be able to participate in determining the minimum services.

So, as we can see, the devil is truly in the details.  The breadth of the powers contemplated for the Secretary of State and the discretionary powers afforded to the employer which encompass only limited requirements for agreement with the workers’ representatives will prompt legal challenges.

So, for the future, one can confidently predict that if enacted the Bill will require those advising trade unions and employers to provide far more than minimal levels of service to their respective clients.

Related Members
David Reade KC Martin Palmer
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