Minimum Service Levels Bill introduced in House of Commons
The Strikes (Minimum Service Levels) Bill 2022-23 (Bill) would introduce a mechanism whereby the Secretary of State can make regulations prescribing “minimum service levels” during a strike in education, health, transport and several other sectors.
The Bill would also give affected employers the ability to issue "work notices" to require certain workers to refrain from strike action to meet those minimum service levels.
If passed, unions and workers would have to comply with these regulations or consequently face losing protections against being sued or dismissed.
Contents of the Bill
When a union calls a strike in a service to which “minimum service regulations” apply, the employer would be able, having consulted the union, to give the union a “work notice”.
A work notice identifies particular workers required to work and the work they are required to do during the strike.
The work notice must not identify more workers than are "reasonably necessary" to meet the minimum service requirement.
If passed, the Bill would also amend unfair dismissal rights. This change means that any worker(s) identified in a work notice who takes part in the strike, to an extent not permitted in the notice, will lose their automatic protection from dismissal.
If a union fails to “take reasonable steps” to ensure that all workers requested to work under a “work notice” comply with that notice, it will lose its protection from liability for inducing workers to participate in the strike.
Concerns and limitations of the Bill
The Bill only concerns strikes, not other forms of industrial action short of a strike.
One possible unintended consequence of the Bill is that it could lead to greater use of other forms of industrial action short of a strike in relevant services where minimum service levels are imposed.
The Bill has prompted concern about a possible lack of effective democratic scrutiny over the new restrictions.
There also, at this stage, seems to be no effective mechanism under the Bill for a union to challenge a work notice that goes further than is “reasonably necessary”.
These minimum service regulations would be able to affect any strike action taking place from the day after the legislation came into force, even if the relevant strike ballot had taken place before this Bill passes.
What does the future hold?
The Bill has prompted a significant reaction from trade unions who consider the Bill "cynical", "draconian", and an "assault on the right to strike".
Liberty is one of 50 organisations to have signed an open letter to the government objecting to the Bill. Liberty cites, among other things, the Bill's lack of detail and the scope it would give to present and future governments to set minimum service levels, and to amend or revoke primary legislation without proper parliamentary scrutiny.
Some organisations have argued that the Bill will disproportionately impact women and ethnic minorities since they are over-represented in some of the affected sectors.
On 6 March 2023, the Joint Committee on Human Rights (JCHR) published a report raising concerns about the Bill's compatibility with the UK's human rights obligations, in particular, the right to freedom of assembly and association in Article 11 of the European Convention on Human Rights (ECHR).
The Committee proposed amendments to the Bill to address the concerns raised in its report.
The JCHR report was followed on 9 March 2023 by a note published by the Equality and Human Rights Commission (EHRC) advising careful consideration of several human rights issues, including interference with:
- Article 4 (prohibition of slavery and forced labour)
- Article 11 (freedom of assembly and association)
- Article 14 (prohibition of discrimination) of the ECHR.
As was also raised by the JCHR report, the EHRC highlighted concerns that employees would lose automatic unfair dismissal protection not only if they fail to comply with a work notice but also if their trade union has failed to take reasonable steps to ensure compliance.
This means that an employee will not know whether they have lost that protection before participating in a strike.
Much of the detail of the proposed law will be set out by the Government in regulations, including the minimum service levels themselves and the scope of the relevant services.
The Bill rapidly progressed through the Commons unamended and is currently in the House of Lords.
More details can be found on the UK Parliament website.
If you have any questions on the proposed Bill, please contact Jill using [email protected] or 0191 211 7933.