Industrial action: New tougher ‘anti-strike’ rules proposed
The Government will introduce a bill to Parliament today
The Government introduced a bill to Parliament on Tuesday 10 January to ensure that minimum service levels in certain sectors will be maintained during strike action.
The new measures, set out in the Strikes (Minimum Service Levels) Bill, will extend current proposals affecting transport to ensure minimum service levels are maintained during strike action undertaken in other critical public sector services.
Under the proposals, some trade union members would be required to continue working during a strike, even if they vote to take part in the action, and the strike is lawfully called via a properly constituted ballot process. The sectors covered by the plans are:
- Health services
- Fire and Rescue
- Border Security
- Nuclear decommissioning and waste management
In this respect, the proposals broadly mirror changes increasing ballot thresholds for industrial action, introduced in 2017.
If the proposals become law, employers will be able to issue a ‘work notice’ detailing the type of workforce needed to maintain minimum service. Individual employees or role-holders may be named. Consultation with the union will be required before a 'work notice' is issued.
It is proposed that employees named on the ‘work notice’ would lose their right to protection from unfair dismissal if they subsequently took part in strike action when required to work. A strike could be unlawful if a union does not take ‘reasonable steps’ to ensure that the specified workers do not strike, with employers potentially being able to obtain an injunction to prevent a strike taking place if the trade union fails to do this. This would be a significant departure from the current position whereby a properly conducted ballot affords blanket protection from dismissal to all strikers. Unions will also lose their legal protection from damages if minimum service levels are not adhered to, meaning that employers could sue them for financial compensation.
Before the bill was published, it was anticipated that it would be the sole responsibility of employers, following negotiation with unions, to prescribe minimum service levels. However, importantly, the new Bill reserves this power to the Secretary of State. Consultation will take place shortly around what acceptable minimum service levels might look like in different contexts. The government will first consult on MSLs for fire, ambulance and rail services, recognising ‘the severe disruption that the public faces’ and ‘the immediate risk to public safety’ when these services are disrupted. Regulations prescribing minimum service levels in these sectors are expected to follow. In the other sectors impacted by the Bill, no regulations will be made in the immediate future. Parties will be expected to come to an agreement on minimum service levels during a strike period, with the government only stepping in to make determinations if it becomes necessary.
These new proposals are not entirely unexpected. In December 2022, the Government introduced the Transport Strikes (Minimum Service Levels) Bill to ensure that minimum levels of service be provided by ‘specified transport services’ during strike action. When the transport measures were first announced, in October 2022, the Government indicated its intention to extend minimum service level requirements to health services and other areas of critical infrastructure. The transport bill has not yet passed its second reading in the House of Commons, and it appears that it will now be absorbed into the newly published, broader bill covering a range of sectors.
However, the measures have already proved hugely controversial, sparking a furious reaction from unions and threats of legal action. Labour leader Sir Kier Starmer has stated that any such legislation would likely be abolished if his party were to win the next general election. The Bill, and any further regulations made under it prescribing minimum service levels, must be approved by both the House of Commons and the House of Lords. The passage of this Bill through Parliament is unlikely to be smooth, and it may be some time before the Bill, or an amended version of it, becomes law.
There are already Minimum Service Agreements (MSA)in place in many other European countries (such as France, Spain, Italy and Belgium) predominantly in the rail and transport sector. Usually, legislation requires employers and unions to agree the number and nature of staff who will remain at work during a strike.
Currently, in the UK, some employers agree MSAs with unions on an ‘ad-hoc’ basis when a strike is proposed. This is most common in manufacturing where agreements are usually focussed on preventing the shut-down of essential plant or equipment that would make return to work following a strike difficult or impossible (for example, if a production line shuts down). However, the new, proposed legislation appears to have a very strong health and safety focus. Reports suggest that the catalyst for the introduction of the new measures was the failure of ambulance unions to voluntarily provide a minimum service level during strikes in December.
It is important to note that any new legislation will not have an impact on the numerous strikes taking place this month (January 2023) which are likely to go ahead as planned.
For further information on matters regarding anti-strike rules, please contact your usual Weightmans contact or our specialist Industrial relations solicitors.