The Strikes (Minimum Service Levels) Act 2023: what does it mean for workers?
Written by Laurene Veale
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The month of July has seen two significant developments in the regulatory landscape of the right to strike in the UK, but the devil will be in the detail of the regulations on minimum service levels during industrial action.
On 13 July 2023, the High Court quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, which attempted to render lawful the supply of agency workers to break a strike. In this judicial review brought by 11 trade unions, the High Court held that the government had acted unlawfully and irrationally by introducing the Regulations, by failing in its duty to consult on the Regulations, and instead relying on a 7-year old consultation (from 2015) where the majority of stakeholders had opposed earlier proposals of a similar set of legislations (§28). The Court found that the then business secretary Kwasi Kwarteng had proceeded ‘at exceptional speed’ in introducing the Regulations before the summer recess of 2022 (§175), an approach described by the Court as one which ‘frustrated the aim of informed decision-making’ (§180). Although this judgment has several interesting public law implications, specifically on the extent and nature of the government’s duty to consult, it is also significant for labour law, and was hailed by the unions as a significant victory in preserving the right to strike in the UK.
Just one week later, on 20 July 2023, amidst staunch opposition by the unions and devolved administrations, the government enacted the Strikes (Minimum Service Levels) Act 2023. This new law enables the government to introduce regulations which would implement minimum service levels during strikes in 6 industrial sectors: health, fire and rescue, education, transport, border security and nuclear decommissioning and nuclear waste management.
Under the Act employers will be able to issue ‘work notices’ to unions and workers which would prohibit identified workers from taking part in a strike and would specify the work these workers are required to do during the strike. These notices will be capable of being issued up to 7 days before the first day of the strike, but only after consultation with the union on the number of workers identified and the work needed to be done. Failure to comply with a work notice means a worker loses their protection from dismissal (under s.238A TULR(C)RA 1992) and a union its immunity from liability in tort for the economic damage caused by a strike.
While the devil will be in the detail of the regulations, below are a few questions arising from a reading of the Act, which potentially present several areas where the new law may be open to legal challenge.
Firstly, there are blatant human rights implications both in terms of the removal of the right to strike from specific workers named in a work notice, and the potentially systematic use of work notices by employers to hinder the effectiveness of industrial action. The Act therefore restricts collective rights as well as an individual worker’s right to withdraw their labour. In its memorandum on the human rights impact of the new legislation, the government writes that minimum service levels is a proportionate interference with Article 11 ECHR (freedom of assembly and association) because it is “less intrusive than banning strike action” altogether, and thereby achieves the aim of “balancing the right to strike with the rights and freedoms of others”. Whether that meets the requirements of proportionality and necessity remains to be seen.
There is also much uncertainty in the lack of any definition of the six sectors where minimum service levels will be imposable. The terms ‘Health services’, ‘education services’ and ‘transport services’ are undefined and could potentially extend beyond the public sector. Will this mean that minimum service levels will be imposed on private clinics, private retirement homes, or occupational health service providers? Would ‘transport services’ include bus drivers, flight attendants, truck drivers, freight train drivers? Would education extend to libraries, community centres or non-governmental educational organisations?
There are also significant questions as to the workability of the ‘work notice’ system. A work notice must not identify more workers than are ‘reasonably’ necessary for meeting minimum service levels – but how is that determined? It boils down to asking how much disruption is reasonable in a strike. And that depends whom you ask.
Other practical difficulties in the work notice system are ripe for litigation. What if an employer identifies the work required to be done in sweeping or inaccurate terms? What if a worker carries out a variety of tasks, only some of which are identified in the work notice – would they be required to carry out only a part of their tasks? How would that affect their pay? Could such changes amount to a change in their employment contract?
The requirement of consultation with a union prior to issuing a work notice is also open to difficulty. No minimum consultation period has been specified, even though the Act envisages work notices to be issued up to merely one week before the start of the strike. Significant union resources will have to be mobilised to understand the intricacies of the work carried out by workers potentially affected by minimum service levels, so as to be able to meaningfully engage with the consultation. It also appears that an employer will be able to vary a work notice up to 4 days before the strike, but there is no mention of consulting the union about that. Would a union or the named workers have an opportunity to challenge that variation, and what would the impact be on the strike?
With all this uncertainty, the impact of this new law on industrial action is impossible to predict without the detail in the regulations. It is hoped that consultation on them will meet higher standards than that on the 2022 regulations by Kwasi Kwarteng.
What is clear is that the Act introduces unprecedented powers to limit the disruptiveness of industrial action. Given that the aim of a strike is to cause disruption so as to exert pressure on an employer in negotiations, the imposition of minimum service levels will inevitably alleviate that pressure. It will also provide visibility to employers as to the degree of disruption caused by a strike, which in turn helps their preparedness and resilience in the face of industrial action. This might lead to more protracted industrial disputes as employers hold their ground longer.
The last year has seen record levels strikes throughout the UK, with the month of December 2022 beating the record of working days lost to strike action since November 2011, according to the ONS. This new law may well lead to a decrease in the number and impact of strikes, by introducing additional risk for unions and workers planning or participating in industrial action. The fear of consequences of non-compliance with the work notices could have a chilling effect on strikers in situations where industrial action is already a risky business, as was seen by the recent ruling that a planned Royal College of Nursing strike was unlawful for falling foul of notification timelines.
The detail and extent of the changes flowing from the Strikes (Minimum Service Levels) Act 2023 remain to be seen, but its enactment already marks a significant turn in the web of regulatory restrictions around industrial action in the UK.
