Strikes (Minimum Service Levels) Bill

– what does this mean for union members?

NEIL TODD, a partner in Thompsons Solicitors’ Trade Union Law Group (TULG), discusses the Strikes (Minimum Service Levels) Bill –the latest in a string of anti-union attacks from the government.

T he Strikes (Minimum Service Levels) Bill, laid before parliament on 10 January, would allow employers to serve ‘work notices’ on trade unions organising industrial action in relevant services where the government has set minimum service levels.

The bill is far more sweeping than the government first suggested and could impact those working in the following areas:

• Health

• Fire and rescue

• Education

• Transport

• Decommissioning of nuclear installations and management of radioactive waste and spent fuel

• Border security.

What is a ‘work notice’, and what will unions have to do to comply?

If a union does not take ‘all reasonable steps’ to ensure its members identified in the work notice comply and attend work when they would otherwise have been taking industrial action, it is at risk of being sued. The employees themselves who are identified also face losing unfair dismissal protection and will be at risk of being fired if they don’t comply.

The only requirement of the secretary of state on making ‘minimum service regulations’ in the sectors identified above is that they consult ‘such persons as they consider appropriate’ before deciding what any minimum service level should be.

NAHT solicitor and director of representation and advice Paula Porter is part of a TUC working group challenging this legislation.

A work notice would identify the employees required to work and what work needs to be performed during the strike to meet the minimum service level. Employers will be able to serve these on the union no later than seven days before the strike action is due to begin. Before giving a work notice, the employer is required to consult the union about the number of employees required to work and what work needs to be performed during the strike. However, the employer has no obligation to follow any representations made by the union over this. If the union is judged to have not taken reasonable steps to ensure its members adhere to the work notice, it will risk losing its immunity from being sued. It is still unclear exactly what taking “reasonable steps” will require in practice.

What will this mean for union members engaging in strike action?

Any worker identified in the work notice as being required to perform work to meet the minimum service level and who fails to do so would lose the protection of section 238A of the Trade Union and Labour Relations (Consolidation) Act. This provision ensures that any dismissal for participating in protected industrial action is unfair if it takes place within the first 12 weeks and may be unfair if it occurs after that period elapses.

Is the new bill legal?

The proposals in the bill ignore international labour standards the United Kingdom has signed up to. In our view, the introduction of minimum safety levels does not comply with the United Kingdom’s legal obligations under convention number 87 of the International Labour Organisation on Freedom of Association and Protection of the Right to Organise and article 11 of the European Convention on Human Rights. The fact there is no limitation on what minimum service might be required, no requirement to agree on it with other stakeholders and no mechanism by which it has to be referred to a third party if no such agreement can be reached makes clear – if there was any doubt – that this is a thinly veiled political act by the government to grab headlines, limit the power of unions and restrict a vital right of working people. We are not alone in holding this view. The parliamentary Joint Committee on Human Rights (JCHR), in a report on the bill published on 6 March 2023, makes clear it does not believe the government has made the case that the new provisions are compliant with the UK’s human rights obligations.

In a highly critical assessment, the JCHR – which has MPs and peers on it and more Conservatives than Labour –made a number of points reflecting our arguments above. For example, it stressed the requirement for trade unions to take “reasonable steps” to ensure their members comply with work notices; however, it did not provide sufficient clarity for trade unions to know what would be required of them. It was particularly concerned with the lack of limits on the level of service the secretary of state may impose as being the necessary minimum in the event of industrial action. It also felt the categories identified were extremely broad, there was inadequate evidence of the “pressing social need” for imposing minimum service levels, and it would be better if minimum service levels were determined through negotiation and independent resolution. The government has two months to respond to the JCHR’s report, and when it does, we will see if it is prepared to change course and halt its naked assault on trade unions and working people.

WEDNESDAY 17 MAY

Leading with your head and your heart — the ultimate balancing act

Keynote Speakers

are great at creating a strategy, systems and plans, setting goals, following a budget and holding their team accountable to the plan’s actions and processes. Leading with your head is about competence, skills and knowledge. Teams that need structure and struggle with managing their time work best under this kind of leadership.

are great at making people feel special, giving them a sense of purpose and appreciation for their work. They focus strongly on relationships and make team members feel that they are a part of the success of a school community. Heart leaders care about the team’s happiness, ambitions and welfare.

How do you strike a balance between the two?

There’s no need to choose one leadership style over the other, but rather combine and adopt the best parts of both.

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THE POWER OF TRUST IN COMPASSIONATE LEADERSHIP with Nicola Percy, founder of Making Schools Click

FIRST 90 DAYS OF LEADERSHIP with Jan Taylor DEMYSTIFYING OFSTED with Philippa Ollerhead