Government plans to restrict right to strike – and the impact of teacher's strikes on employees

On the 10^th January 2023, the Government introduced the 'Strikes (Minimum Service Levels) Bill' to Parliament. The Government claims the Bill is designed to "ensure the safety of the public and their access to public services", and comes at an interesting time as the United Kingdom struggles with heightened levels of industrial action.

Strike action across the UK is currently mainstream news. Some news outlets are providing a 'strike calendar' to allow the public to keep track of sector strikes impacting transport, education, civil services, healthcare etc. Trains have been cancelled, ambulances have been later than usual, and some schools will be closed.

A striking workforce is causing political embarrassment for the Government, and clearly has a big everyday impact on the general population. Although there is mixed polling evidence surrounding the extent of public support for general strike action, the Government has decided that now is the time to curtail the right to strike. How controversial is the Bill, and what do we need to know?

How does the Bill work?

The Bill would allow the Secretary of State to set minimum service levels for employees working in the following sectors:

• Health services
• Education services
• Fire and rescue services
• Transport services
• Decommissioning of nuclear installations and management of radioactive waste and spent fuel
• Border security

Employers in those sectors would be required to identify the workers required to work during a strike. They would be required to issue a work notice to specify the number of workers needed to meet minimum service levels. If workers included in the work notice were to decide to strike, they could be dismissed on a low-risk basis, as they would lose their right to automatic protection from unfair dismissal.

Furthermore, the relevant trade union would lose its immunity from liability if it fails to take reasonable steps to ensure that all members of the union who are so identified comply with the work notice.

This is big news. At present, the general rule is that if strike action is agreed on a lawful basis, employers cannot sue the union for their part in arranging the industrial action. The striking employees are also protected from dismissal. This rule would change under the proposals contained within the Bill.

We are yet to discover what the minimum service levels will be for each of the relevant sectors. The Government will first consult with fire, ambulance and rail services. If the Bill is to pass, it is from these first consultation exercises that we shall have a better understanding of the likely minimum service levels.

The Government's position

The Government has indicated that it will set minimum service levels for fire, ambulance and rail in the first instance. It "hopes to not have to use these powers for other sectors included in the Bill, such as education,other transport services, border security, other health services and nuclear decommissioning". Perhaps ominously, the Government has also explained that it expects parties in the "other" sectors to reach a sensible and voluntary agreement on delivering a reasonable level of service when there is strike action but will "step in and set minimum service levels should that become necessary".

This is a message echoed by the Secretary of State himself (Grant Schapps), who believes the new powers will only be used to ensure "the safety of the British public". What this means exactly is unclear, but it would not be unreasonable to suggest that, in the first instance, only front-line emergency services (and for some reason the rail sector) will be targeted as these sectors can impact life or death situations.

The Government has also highlighted that the principle of minimum service levels is already recognised in many countries across the world, such as Italy and Spain, where systems for applying minimum levels during strikes are in place for services the public depend on.

The criticism

Reaction from Trade Unions has been predictably fierce. Mick Lynch (General Secretary of the RMT) and Sharon Graham (Leader of Unite) have issued scathing statements regarding the potential impact of the Bill.

A point of contention is that we do not yet know the minimum service levels that will be set by Government. It would not be unreasonable to suggest that the Government also does not know where it will set its minimum service levels at this stage. If minimum service levels prevent strike action from being truly meaningful in certain sectors, then it can be envisaged that public and media attention will focus on lost inherent rights to strike, and criticism or disharmony could increase.

Criticism has also been levied in relation to the lack of detail surrounding the Bill at this stage. The Government intends to remedy this issue by seeking to enable itself to amend consequential legislation in the current Parliamentary session, but this is an unusual position which calls into question the level of legitimate scrutiny which the final legal framework will receive. It also raises concerns surrounding the powers afforded to the Secretary of State to amend, repeal or revoke elements of primary legislation at a later stage in proceedings.

There is also some further debate surrounding the impact of the Bill on existing human rights law. Article 11 of the Human Rights Act protects an employee's right to form and join trade unions for the protection of their interests. However, Article 11 does allow restriction of that right if "necessary in a democratic society in the interests of national security or public safety" and exercised by the state. The Government believes that the Bill is compatible with human rights law but there are likely to be legal challenges on human rights grounds, if/when it is eventually passed.

Regardless of criticism, there does appear to be a level of public support for the Bill. The Times is reporting that a YouGov poll for The Times has found backing for minimum service levels in schools, emergency services and rail of 56% of voters, against 31% who are opposed. Support for measures allowing workers to be sanctioned for taking part in action was much lower.

Conclusion

The Government is seeking ways in which it can reduce the embarrassment caused by widespread strikes, whilst undoubtedly also attempting to maintain a basic level of public health and safety by ensuring front-line services can function during industrial action.

The Bill, if implemented, may allow the Government to achieve the latter of these two aims. The Secretary of State, in exercising powers to set minimum service levels, may secure a level of service which keeps emergency services online. This would be a publicity win for the Government at a time when strike action looks to be intensifying and not easing.

However, the Bill, if implemented, will face huge backlash from Trade Unions. If the Government underestimates public dissent towards the Bill, then any powers imposed as a result of it may fall flat in the face of disobedience and strike action in spite of minimum service levels. Certain sectors (such as health and education in particular) are generally seriously understaffed and at crisis point. It would be disastrous for the valuable workers in these vulnerable areas to be dismissed, and would only serve to deepen the woes of the Government and heighten tension within the sectors themselves.

There has been little recent public or political desire to materially amend or change the protections afforded by the Trade Union and Labour Relations (Consolidation) Act 1992. However, with increasing general disharmony and strike action in the United Kingdom, the Government will now have to gamble on tweaking the law surrounding industrial action in order to seek to increase its credibility and maintain basic public safety but this could backfire with an escalation of disharmony and entrenched views.

The impact of teachers' strikes on employees

The recent news of the NEU voting for strike action in England and Wales will mean that you and many of your fellow colleagues may well be facing into 4 days of school closures in February and March (the particular dates vary by region).

If you have employees who have school-aged children it is sensible to start communications with them now to understand the likely dates of strike action which may affect them and how to manage their work or absence as a result. It pays to be flexible and COVID certainly demonstrated the possibility for some staff to be able to work adequately from home alongside older children or by completing the work at different times from home, which may be an option here. Where this will not work (e.g. because the role cannot be done from home) you will need to discuss whether they have alternative childcare arrangements in the event their school closes or, if not, they plan to take this time off as annual leave or unpaid time off (it may well fall into emergency time off for dependents).