Latest developments in the Strikes (Minimum Service Levels) Act
On 25 August the government issued a consultation about the controversial and recently introduced Strikes (Minimum Service Levels) Act 2023. Paul Scholey, consultant solicitor in our employment team comments on these latest developments.
It is hard to find anyone outside the current government who has a good word to say about the new legislation.
The House of Lords repeatedly sent the bill back to the Commons with suggested amendments.
The government’s own all party regulatory policy committee published an opinion in February describing the government’s impact assessment as ‘not fit for purpose’.
The Act is yet another example of legislation where the devil will be in the detail – and the detail has not yet been worked out.
In this latest consultation, the government seeks opinions on a draft code of practice that is available here.
Specifically, the consultation is about the ‘reasonable steps’ that a trade union must take to ensure that its members comply with minimum service levels.
The Act will work in this way:
- The union declares a strike;
- The employer issues a ‘work notice’ specifying who must work and what they must do;
- The union must take ‘reasonable steps’ to ensure compliance;
- The strikes take place but are of course undermined by the fact that union members must cross their own picket lines or face potential dismissal.
We lawyers are often criticised for use of the word ‘reasonable’. That is a word that appears more than once in the new Act. The workers that an employer can say must work under a work notice are those who are ‘reasonably necessary’ to get the work done. The steps that a union must take to ensure compliance are ‘reasonable steps’.
As any litigant will tell you, ‘reasonable’ is very much in the eye of the beholder. In the end the only way to find out what reasonable really means will be to test the issue in the courts/tribunals.
So, what ‘reasonable steps’ does the draft code suggest that unions should take?
There are 5:
- The union must identify its members who are subject to the work notice – which is obvious enough.
- They must encourage those members to go to work. The code includes a draft ‘compliance notice’ (Orwell will be turning in his grave) designed to ‘encourage’ members to break their own strike.
- Members must be informed more generally – some sample wording is provided to encourage members to support their colleagues who are being forced against their will to work.
- Picket supervisors are to be instructed to ensure that those subject to a work notice can get to work – by breaking the union’s own strike/picket line.
- The union must provide ‘assurance’ – which is a catch-all, it seems, to ensure that the union does not encourage with one hand whilst discouraging with the other.
Views are sought in relation to the consultation until it closes on 6 October.
The minimum service levels will apply to health, education, transport, fire and rescue, border control and more.
It is I think unsurprising that the new Act was explicitly said to be one of the reasons that the International Trade Union Confederation downgraded the UK’s rating in its ‘global rights index’ from a 3 to a 4 – on a scale of 1 to 5! The score indicates a “systematic violation of rights”.
The Act flies in the face of everything that trade unionism is about.
It prevents workers withdrawing their labour.
It exposes workers to the risk of dismissal if they contravene a work notice.
More worryingly still, the union that fails to take ‘reasonable steps’ can both lose its own immunity from suit (so it can be sued for an injunction and damages) but also will lose for its members the benefit of their immunity from dismissal. So even workers who are not named in the work notice could find themselves dismissed, without redress, if their trade union has failed to take ‘reasonable steps’ (even if those members know nothing about the steps that the union has or has not taken).
It is, frankly, an appalling attack on collective rights and the sooner it comes off the statute book, the better. Tony Blair once bragged that we had the most restrictive union laws in the west. They’re now a good deal worse.
It will be interesting in practice to see which employers try to force the unions’ hands. I venture to suggest that it is not going to be entirely conducive to fruitful negotiations if an employer says that it will require union reps to cross their members’ picket lines to do the very work that those members are picketing to prevent.
Watch this space…
