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The Strikes (Minimum Service Levels) Act 2023 introduces unprecedented restrictions on the right to strike. Laurene Veale looks at the Act’s compliance with human rights law and the practical difficulties it presents for unions
The last year set a new 12-year record in the number of working days lost to strikes in a month as well as the largest single day of industrial action in more than a decade. It also saw many sectors strike for the first time: barristers, nurses, railway cleaners and Amazon workers.
The government’s response was to enact the Strikes (Minimum Service Levels) Act 2023 (S(MSL)A 2023), which introduces unprecedented powers to diminish the effectiveness of strikes in six key sectors of the economy: health, fire and rescue, education, transport, border security and nuclear decommissioning. In these sectors, employers are now able to issue ‘work notices’ to unions and workers in advance of a strike, requiring identified workers, whose work is deemed by the employer to be necessary to ensure minimum service levels, to work during the strike. Workers who do not comply (ie those who refuse to cross the picket line) will lose their protection from dismissal. An employer would therefore be able to dismiss a worker for having taken part in a strike and the worker would not be entitled to bring a claim for unfair dismissal or be compensated for that dismissal. As a result, the Act effectively creates a situation where an employer, to dissuade certain workers from striking, will be able to threaten them with dismissal and carry out that threat if the worker chooses nevertheless to exercise their right to strike.
That is arguably the most significant interference with the right to strike that the UK has ever seen. Whether it is compliant with Article 11 of the European Convention on Human Rights, which recognises the right to freedom of assembly and association, including the right to strike, is questionable. It will largely depend on the minimum service levels and the mechanism by which they are determined, to be detailed in upcoming regulations (which will be enacted after the consultation process).
Already on the face of the Act, it is clear that the scope of the MSLs is wider than similar measures in other European countries. For example, if a narrow interpretation of the various sectors to be targeted by MSLs (‘health services’, ‘education services’, ‘transport services’ etc.) is not provided for in the upcoming regulations, the MSLs would apply beyond ‘essential services’ as defined by the ILO, whose standards on MSLs the European Court of Human Rights has expressly endorsed. Notably, the Strasbourg Court has held that the transport of passengers and commercial goods is not an essential service.
Further, if the MSLs in each sector are to be imposed by the Secretary of State through regulations, that would breach ILO standards which require that MSLs be negotiated with workers or their representatives. This negotiation is important because what ‘minimum’ levels should be during a strike will depend on who you’re asking. Workers will want MSLs to be sufficiently low that the strike remains disruptive. The very point of a strike is to disrupt a sector or service so as to force the employer to the negotiation table. It is often the only pressure tool that workers have in the unequal balance of power between employer and worker. Reducing the disruptiveness of a strike and therefore the pressure on the employer also means that the strike is likely to last longer, as the employer will be in a position to resist making concessions for longer. That is something that is harmful to workers and service users alike. On the other hand, employers will naturally want to rely on MSLs to discourage workers from striking, minimise the effectiveness of the strike and prevent the economic damage that might result. To find a right balance between these polar opposites is tricky (some might say impossible), but that balance is required so that MSLs are proportionate, and therefore lawful.
Beyond compliance with human rights law, the S(MSL)A 2023 also presents practical difficulties arising from the ‘work notice’ system, the scope of which will only be visible once the regulations come in. For example, the Act requires that employers consult unions about the number of workers to identify in the work notice and the work they will be required to carry out. That will place an administrative burden on unions to keep an up-to-date register of their members’ jobs and the nature of the work they carry out – not an easy task in a fast-changing labour market where workers change jobs and tasks much more frequently than before. Further, there is no requirement in the Act for employers to consult on amending the work notice, and employers can do so within four days of the strike. This has the potential of catching a union and its members off guard, with workers finding out at the last minute that they must attend work or face the risk of dismissal, and unions having no opportunity to raise an objection or set out why that worker is not needed to assure MSLs. The amendment of work notices therefore presents an avenue for employers to get round the consultation requirement, exposing unions and workers to potentially unexpected, capricious or vindicative amendments by employers in a short timeframe.
Perhaps most concerning is the chilling effect the S(MSL)A 2023 will have on industrial action. The Act requires that a union take ‘reasonable steps’ to ensure compliance with a work notice, or else it will lose immunity from liability in tort for the economic damage of the strike. What amounts to ‘reasonable steps’ remains to be seen and will almost certainly be fact-specific. Nevertheless, the government published in August a draft Code of Practice on reasonable steps a union can take, and these include sending emails to members named in a work notice to encourage them to comply with work notice, and avoiding the publication of communications to all members encouraging them to strike if that communication does not mention that members named in a work notice should disregard that communication.
The practical difficulty for unions is blatant. The Act’s requirements means that any union official representing workers named in a work notice would have to verify if the work notice lists any of the union’s members (or, if the work notice is amended, if the amendment includes any members’ names) and then either identify concrete grounds for objecting to their inclusion in the list, or if the union does not intend to object, finding ways to contact those members to tell them to comply with the work notice, all in a very short timeframe. If the union official fails to encourage the workers to comply with the notice, the whole union may lose its immunity from liability in tort.
This draft Code is a clear indicator of the contradictory role imposed on unions by this new law. It requires unions to ensure that their members cross the very picket line which the union has organised – an absurd situation where unions are effectively required to assist an employer in undermining a strike.
Already unions face significant risk when it comes to planning and engaging in industrial action. The Trade Union Act 2016 imposes high hurdles on balloting for strikes, notifying employers about them, and holding picket lines. As Tony Blair said during the 1997 election campaign, the UK has ‘most restrictive laws on trade unions in the Western world’. The S(MSL)A 2023 makes this legal framework even more restrictive.
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Pictured above: The largest single day of industrial action in more than a decade – on Wednesday 1 February around half a million people staged walkouts around the UK, including university staff, school teachers, train drivers and public service workers.
Laurene Veale is a barrister at Cloisters Chambers specialising in employment and discrimination law. She is regularly instructed by unions and has particular experience representing workers subjected to detriment or dismissal for union activities or industrial action.
The last year set a new 12-year record in the number of working days lost to strikes in a month as well as the largest single day of industrial action in more than a decade. It also saw many sectors strike for the first time: barristers, nurses, railway cleaners and Amazon workers.
The government’s response was to enact the Strikes (Minimum Service Levels) Act 2023 (S(MSL)A 2023), which introduces unprecedented powers to diminish the effectiveness of strikes in six key sectors of the economy: health, fire and rescue, education, transport, border security and nuclear decommissioning. In these sectors, employers are now able to issue ‘work notices’ to unions and workers in advance of a strike, requiring identified workers, whose work is deemed by the employer to be necessary to ensure minimum service levels, to work during the strike. Workers who do not comply (ie those who refuse to cross the picket line) will lose their protection from dismissal. An employer would therefore be able to dismiss a worker for having taken part in a strike and the worker would not be entitled to bring a claim for unfair dismissal or be compensated for that dismissal. As a result, the Act effectively creates a situation where an employer, to dissuade certain workers from striking, will be able to threaten them with dismissal and carry out that threat if the worker chooses nevertheless to exercise their right to strike.
That is arguably the most significant interference with the right to strike that the UK has ever seen. Whether it is compliant with Article 11 of the European Convention on Human Rights, which recognises the right to freedom of assembly and association, including the right to strike, is questionable. It will largely depend on the minimum service levels and the mechanism by which they are determined, to be detailed in upcoming regulations (which will be enacted after the consultation process).
Already on the face of the Act, it is clear that the scope of the MSLs is wider than similar measures in other European countries. For example, if a narrow interpretation of the various sectors to be targeted by MSLs (‘health services’, ‘education services’, ‘transport services’ etc.) is not provided for in the upcoming regulations, the MSLs would apply beyond ‘essential services’ as defined by the ILO, whose standards on MSLs the European Court of Human Rights has expressly endorsed. Notably, the Strasbourg Court has held that the transport of passengers and commercial goods is not an essential service.
Further, if the MSLs in each sector are to be imposed by the Secretary of State through regulations, that would breach ILO standards which require that MSLs be negotiated with workers or their representatives. This negotiation is important because what ‘minimum’ levels should be during a strike will depend on who you’re asking. Workers will want MSLs to be sufficiently low that the strike remains disruptive. The very point of a strike is to disrupt a sector or service so as to force the employer to the negotiation table. It is often the only pressure tool that workers have in the unequal balance of power between employer and worker. Reducing the disruptiveness of a strike and therefore the pressure on the employer also means that the strike is likely to last longer, as the employer will be in a position to resist making concessions for longer. That is something that is harmful to workers and service users alike. On the other hand, employers will naturally want to rely on MSLs to discourage workers from striking, minimise the effectiveness of the strike and prevent the economic damage that might result. To find a right balance between these polar opposites is tricky (some might say impossible), but that balance is required so that MSLs are proportionate, and therefore lawful.
Beyond compliance with human rights law, the S(MSL)A 2023 also presents practical difficulties arising from the ‘work notice’ system, the scope of which will only be visible once the regulations come in. For example, the Act requires that employers consult unions about the number of workers to identify in the work notice and the work they will be required to carry out. That will place an administrative burden on unions to keep an up-to-date register of their members’ jobs and the nature of the work they carry out – not an easy task in a fast-changing labour market where workers change jobs and tasks much more frequently than before. Further, there is no requirement in the Act for employers to consult on amending the work notice, and employers can do so within four days of the strike. This has the potential of catching a union and its members off guard, with workers finding out at the last minute that they must attend work or face the risk of dismissal, and unions having no opportunity to raise an objection or set out why that worker is not needed to assure MSLs. The amendment of work notices therefore presents an avenue for employers to get round the consultation requirement, exposing unions and workers to potentially unexpected, capricious or vindicative amendments by employers in a short timeframe.
Perhaps most concerning is the chilling effect the S(MSL)A 2023 will have on industrial action. The Act requires that a union take ‘reasonable steps’ to ensure compliance with a work notice, or else it will lose immunity from liability in tort for the economic damage of the strike. What amounts to ‘reasonable steps’ remains to be seen and will almost certainly be fact-specific. Nevertheless, the government published in August a draft Code of Practice on reasonable steps a union can take, and these include sending emails to members named in a work notice to encourage them to comply with work notice, and avoiding the publication of communications to all members encouraging them to strike if that communication does not mention that members named in a work notice should disregard that communication.
The practical difficulty for unions is blatant. The Act’s requirements means that any union official representing workers named in a work notice would have to verify if the work notice lists any of the union’s members (or, if the work notice is amended, if the amendment includes any members’ names) and then either identify concrete grounds for objecting to their inclusion in the list, or if the union does not intend to object, finding ways to contact those members to tell them to comply with the work notice, all in a very short timeframe. If the union official fails to encourage the workers to comply with the notice, the whole union may lose its immunity from liability in tort.
This draft Code is a clear indicator of the contradictory role imposed on unions by this new law. It requires unions to ensure that their members cross the very picket line which the union has organised – an absurd situation where unions are effectively required to assist an employer in undermining a strike.
Already unions face significant risk when it comes to planning and engaging in industrial action. The Trade Union Act 2016 imposes high hurdles on balloting for strikes, notifying employers about them, and holding picket lines. As Tony Blair said during the 1997 election campaign, the UK has ‘most restrictive laws on trade unions in the Western world’. The S(MSL)A 2023 makes this legal framework even more restrictive.
*
Pictured above: The largest single day of industrial action in more than a decade – on Wednesday 1 February around half a million people staged walkouts around the UK, including university staff, school teachers, train drivers and public service workers.
The Strikes (Minimum Service Levels) Act 2023 introduces unprecedented restrictions on the right to strike. Laurene Veale looks at the Act’s compliance with human rights law and the practical difficulties it presents for unions
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