Banning Strikes by the Backdoor?

When the bill that became the Trade Union Act 2016 was first introduced in Parliament, the then president of the TUC, Frances O’Grady, suggested that the Government might be using the new legislation to ‘ban strikes by the back door’. An outright prohibition of industrial action would be too politically contentious and anyway vulnerable to legal challenge as breaching workers’ and trade unions’ freedom of association, protected by Article 11 of the European Convention on Human Rights (ECHR). Instead, the Government proposed a number of amendments to the existing law that would each hem in the already limited right to strike, narrowing it further until it became all but impossible to exercise. Most dramatically, the bill raised the threshold level of support that a union would have to win in a pre-strike ballot if the ensuing industrial action was to be lawful. Previously, planned industrial action had had only to win the support of a simple majority of the relevant workers, regardless of the size of the turnout. Under the new rules, in all ballots for industrial action, at least 50% of the union members entitled to vote would have to take part in the ballot in order for it to be valid. Furthermore, when industrial action was planned in ‘important public services’, trade unions would have to meet the additional requirement that 40% of all those entitled to vote should vote yes. According to the Government, these new rules would improve internal union democracy and ‘fairness’ to consumers (especially consumers of public services), who might otherwise be more frequently inconvenienced by strike action. ‘There should be a law against these Tube strike militants wrecking your lives’ as Boris Johnson, then Mayor of London, had written in the Daily Telegraph. In a context of economic austerity and public sector pay freezes, O’Grady and others supposed that a significant ulterior motive was to limit the ability of public sector unions to protest further cuts to budgets impacting on their terms and conditions of employment. Larger unions would likely find it especially difficult to mobilise members in sufficient number to meet the new ballot thresholds.

In fact, trade unions of all sizes have continued to win pre-strike ballots in the intervening years. In 2022 and 2023, there has been a wave of industrial action with rail workers, postal workers, school teachers, university staff and nurses all voting in sufficiently large number to exercise their right to strike. In response, the Government has acted to redraw the battle lines, to restrict trade union and worker freedoms yet further, and thereby to test the limits of what it can get away with, politically and legally.

In July 2022, the Johnson Government ended a ban on employment agencies supplying workers to temporarily replace striking workers that had been in force since 1976. In doing so, it ignored a joint statement of the TUC and the Recruitment and Employment Confederation, representative of agency employers, which described the proposals as ‘unworkable’. In December 2022, the High Court granted permission for a legal challenge to be brought by eleven trade unions, coordinated by the TUC and represented by Thompsons Solicitors LLP. In judicial review proceedings scheduled for late March 2023, it will be argued that the regulations in question are unlawful because they were made without prior consultation of the trade unions, as required by the Employment Agencies Act 1973, and because they violate trade union rights as protected by Article 11 ECHR.

Not content to rest there, the Sunak Government has just this week introduced new legislation in the House of Commons of potentially much greater impact even than the agency worker regulations. The Strikes (Minimum Services Levels) Bill gives the Secretary of State for Business, Energy and Industrial Strategy the power to issue regulations specifying minimum service levels for particular sectors that will apply in the event of industrial action being planned in one of those sectors. When an employer in an affected sector is given notice by a union of industrial action, it can then serve a ‘work notice’ on the union identifying the employees (apparently by name) that it believes it needs in order to meet the service levels required. When a work notice has been given, the union must take all reasonable steps to ‘ensure that all members of the union who are identified in the work notice comply with the notice’. As Keith Ewing and John Hendy have pointed out, this puts the union in the very strange position of being required by law to take steps to undermine its own industrial action. If it fails to do so, the industrial action will be unlawful, meaning that an employer (or third party) will be able to seek an injunction to prevent it going ahead or, alternatively, to wait and sue the union for damages. Any employee who refuses to comply with a work notice and is then dismissed will lose their right to claim compensation for unfair dismissal. Short of criminal sanctions, this is about as severe as it gets.

The new Bill replaces the Transport Strikes Bill introduced last October and is both broader in scope – since it covers health, fire and rescue, education, nuclear decommissioning and border security in addition to transport – and somewhat simpler in terms the scheme that it proposes. The Transport Strikes Bill contained provisions allowing employers and unions to agree minimum service levels, and requiring the Central Arbitration Committee to step in and make a determination if no agreement was reached. The Secretary of State could issue regulations, but these would not apply if there was an agreement or a CAC determination. In the new Bill, responsibility for the issuing of Regulations relating to minimum levels of service lies solely with the Secretary of State. Since the Bill gives no indication of what a minimum service level will be and contains no criteria or guiding principles setting out how that minimum level of service is to be determined, however, interpretation involves the reader in some guess work.  Could a work notice in the education sector require that a skeleton staff attend schools on strike days to supervise vulnerable pupils?  Could it require greater numbers to attend if industrial action was planned in the run up to national exams, to ensure that pupils’ exam preparation was not affected? As Darren Newman has argued, the absence of any clarity on this key issue amounts to bad lawmaking. ‘The Government is granting itself sweeping powers while claiming that it only intends to use them for a limited purpose. This allows it to sidestep any debate about how the tension between the right to strike and impact that strikes have on public services should be navigated.’

Of course, the Bill is yet to be scrutinised or debated and there will be many opportunities to amend it as it makes its way through Parliament.  If it ends up in the statue books in anything like its current form, legal challenge is to be expected.  When introducing the Bill, Grant Shapps appeared to anticipate this possibility, making two claims of dubious veracity. First, he told the House that the bill would bring the UK into line with countries including France, Italy, Spain and Germany, all of which made provision of one sort or another for minimum service levels. Second, he suggested that the International Labour Organisation supports minimum service agreements. This second point is of particular importance given the willingness of the European Court of Human Rights in some cases to refer to international law when interpreting Article 11 of the Convention.

While it is true that minimum service levels are required in several European countries, often by collective agreement, sometimes by legislation, these requirements have to be understood as one part of legal systems which, on the whole, offer far, far greater protection of workers’ and trade unions’ freedom of association than UK law. Responding directly to Shapps’ claim, Esther Lynch, General Secretary of the European Trade Union Confederation said:

‘The UK already has among the most draconian restrictions on the right to strike in Europe, and the UK government’s plans would push it even further away from normal, democratic practice across Europe. Pay in Germany, Sweden and many other EU countries is decided through collective bargaining, and most disputes are settled through negotiation between trade unions and employers, including in the public sector. There is no comparison to be made between that system of social dialogue, and the political conflict the UK Government is stoking over public sector pay.’

While it is true, meanwhile, that international law permits minimum service requirements, it does so in specific cases only, and only insofar as a number of principles are respected. First, minimum service agreements should not call into question the right to strike of the large majority of workers concerned and should not render the strike ineffective. Second, trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service.  Third, minimum service agreements should be reached before any industrial dispute arises in order to give adequate time for negotiations and decision-making. Fourth, any disagreement between a trade union and employer should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned.

As it stands, the Strikes (Minimum Service Levels) Bill seems to be at odds with at least the second, third and fourth of these. The new rules require an employer to consult the union and to ‘have regard’ to the union’s response but otherwise leave it to the employer to decide the terms of the work notice. In the case of disagreement, which seems at least highly likely, the employer’s opinion will prevail. As to timing, if a work notice is to be given to a trade union, this must be done after the union has given notice of industrial action – well after the dispute has begun.

This blog was originally published on the Glasgow School of Law website