Blink and You’ll Miss It

Less than a week after its first reading on 10 January, the Strikes (Minimum Service Levels) Bill has had its second reading in the House of Commons.

The Bill makes provision for minimum service levels to be delivered to service-users when industrial action is being taken. Unlike the Transport Strikes Bill, which it replaces, it covers a number of sectors in addition to transport – health, fire and rescue, education, nuclear decommissioning and border security.

The Bill is short and the scheme that it proposes quite simple. After a trade union gives notice to an employer of industrial action, as it is required to do by statute, the employer can respond by giving a so-called ‘work notice’ to the trade union. This is a ‘notice in writing that levels of service under minimum service regulations are to apply in relation to a strike’. Such a notice must (a) identify the persons required to work during the strike, and (b) specify the work required to be carried out by them, in order to ensure the requisite levels of service. The relevant section is written in permissive rather than mandatory terms – ‘the employer may give a work notice’ – and the Bill makes no alternative provision for ensuring minimum service if the employer chooses, for whatever reason, not to do so.

When drafting a work notice, the employer is required to consult the trade union and to ‘have regard to any views expressed by the union in response’, but not to reach agreement with the union, meaning that, in the case of disagreement, the employer’s view will prevail. Since the work notice is to be given only after notice of industrial action, it appears to follow that the drafting of the notice and the consultation with the union will necessarily take place in the context of an ongoing industrial dispute, within an extremely short time-frame of potentially only 7 days. This is hardly conducive to agreement!

What ‘minimum service’ means in any given case is to be defined in statutory instrument by the Secretary of State for Business, Energy and Industrial Strategy (BEIS), a point returned to below. No indication is given in the Bill of how specific that definition is likely to be and, therefore, how much freedom the employer will have in specifying the work required to be carried out and the category and number of workers needed to do it. What does seem clear is that, subject to the duty to consult with the union, the employer will be free to identify ‘the persons required to work’ by name. Indeed, for practical reasons, it might have to do so since any more general designation (eg ‘fifteen nurses’, ‘ten teachers’) would result in the need for volunteers to step forward. Where a named individual refuses to comply with the terms of the work notice, and is dismissed by the employer, the Bill provides that s/he may not claim unfair dismissal.

On the face of it, the Bill provides that the employer must not have regard to union membership (or non-membership) in selecting workers to include in the notice. Since non-members are highly unlikely to participate in the ensuing action, an employer who is in a position to choose between members and non-members would seem unlikely to name the latter in any significant number. Wherever direct debit is used by the union in preference to ‘check-off’ as a means of collecting membership dues, however, the employer may not have a very clear idea of who is a member and who is not. Where non-members are named in the work notice, it is unclear, as the Bill stands, how they are to learn of their conscription, since the Bill provides only that the notice be given to the trade union and not to anyone else.

That employers should be awarded state-backed power, in this way, to force named individuals to work is quite astounding and arguably at odds with the fundamental principle that the employment relation is a contractual and, therefore, consensual one. This is a principle recognised, as Keith Ewing and Lord Hendy point out, in section 236 of the Trade Union and Labour Relations (Consolidation) Act, which provides that no court can ‘compel an employee to do any work or attend at any place for the doing of any work’. It is a principle that has otherwise been upheld in UK law since the repeal of the Essential Work Orders that were in force, exceptionally, during the second world war.

It is all the more astounding that the Bill goes on to require the trade union to take ‘reasonable steps’ to ensure that all union members identified in the notice comply with it. This puts the union in the strange position of being required by law to take steps to undermine its own industrial action – albeit unspecified steps, since the Bill contains no guidance as to what ‘reasonable’ might mean in this context. If the union is eventually judged to have fallen short of this vague requirement, the industrial action becomes unlawful, meaning that an employer (or third party) can seek an injunction to put a stop to it or wait until the action is over and sue for damages. Additionally, all striking workers lose their statutory protection against retaliatory dismissal. These are high stakes indeed.

The Bill is also remarkable for the breadth of the powers that it bestows upon the Secretary of State for BEIS, a role currently occupied by Grant Shapps. As the Bill stands, it is Mr Shapps and not Parliament who is empowered to make regulations ‘to determine the levels of service in relation to strikes as respects minimum services’.  This means that it is for Shapps to define the scope of application of the Bill: what is meant by ‘health services’, ‘education services’, ‘transport’, and so on. It is also for him to define what ‘minimum service levels’ are in each sector, meaning, presumably, that is for him to define the nature of the services to be provided, the number of people who are to provide them, the time at which they are to be provided, and the manner in which they are to be provided. The Bill is silent on how these decisions are to be made. There is no requirement, for example, for the Secretary of State to consult employers or trade unions or for it to have reference to any evidence or principles. What the Bill does specify is that any regulations made pursuant to its terms may ‘amend, repeal or revoke’ any provision of any primary legislation, including legislation passed by the Scottish Parliament and Welsh Senedd. As Ewing and Hendy conclude, this part of the Bill raises serious constitutional objections, and is surely designed to provoke outrage – perhaps even to draw the ire of opposition politicians, parliamentary committees and Members of the House of Lords while other parts of the Bill escape such detailed scrutiny.

Does the Bill Breach Workers’ Freedom of Association?

It is not difficult to make the case, as Ewing and Hendy do elsewhere, that this Bill breaches workers’ and trade unions’ freedom of association as protected by international law and various treaties to which the UK is signatory including the European Convention on Human Rights (ECHR). Since its landmark decision in the case of Demir and Baykara v Turkey, the European Court of Human Rights has affirmed in quite unambiguous terms that Article 11 of the Convention protects the right to collective bargaining and the right to strike. Conferring power on an employer to issue a work notice unilaterally, having only consulted the union but not secured its agreement, might constitute a breach of the right to collective bargaining as protected by Article 11. Requiring named individuals to work during a strike might constitute a breach of their right to strike.  If ‘minimum service’ is defined so as to undermine the effectiveness of the industrial action, the work notice might also constitute a breach of the right to strike of the trade union and the striking workers.

Taking a first look at the Bill last week, I identified a number of principles to which the governing bodies of the International Labour Organisation have reference when deciding the permissibility, according to international law, of particular minimum service agreements. According to the precedent set in Demir and Baykara, the Strasbourg Court (and indeed any other court) may also have reference to these principles when interpreting the scope of the protection offered by Article 11 ECHR.

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 organisations 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. Depending on how ‘minimum service’ is eventually defined in the secondary legislation, the first principle may also be breached.

Second Reading

Given the breadth of the powers which the Bill bestows on the Secretary of State and the ways in which it appears to pave the way for breach of workers’ and trade unions’ fundamental rights to freedom of association, the speed with which it is being ushered through Parliament is also cause for concern. At the end of a Second Reading debate lasting just over five hours, a motion was passed to commit the Bill to a Committee of the Whole House, with proceedings in Committee to last not more than five hours, and the Third Reading to be completed 6 hours after that. On the day of the Second Reading, the Regulatory Policy Committee (RPC) issued a statement to the effect that it had not yet received any Impact Assessment from BEIS. The role of the RPC is to provide opinions to help Government departments to ensure that the evidence and analysis in their impact assessments is sufficiently robust. Departments are expected to submit such assessments to the RPC before a bill is laid before Parliament and in time for the RPC to issue an opinion alongside the assessment’s publication.

During the debate, a number of opposition politicians raised important objections to the Bill. Pointing out that to comply with Article 11 ECHR, the new measures would have to be ‘necessary in a democratic society’, for example, Joanna Cherry MP reminded Mr Shapps that the memorandum that had accompanied the Transport Strikes Bill last October had stated explicitly that the Government’s legal advice was that it is not justifiable or necessary in a democratic society to have such restrictions in emergency and patient care services, in fire and rescue, or in education—only in transport. To that, Owen Thompson MP added:

The sweeping Henry VIII powers in the Bill, enabling Ministers to amend, repeal or revoke primary legislation not yet passed, should chill the heart of any democrat. It is ironic that a Government so keen to turn their back on Europe lean so heavily on their excuse, “But that is what other countries do”. It is also deeply disingenuous, and as Unison has rightly pointed out, countries being cherry-picked by the Government, such as Italy and France, come to voluntary agreements through collaborative processes and have far less restrictive measures in place than we currently see in the UK. They do not have unspecified minimum service levels imposed on them by an Executive, as this Bill would enable this Government to do. Strikes are not the cause of the problems we face here; they are a symptom of the deep-rooted damage that has been done to our public service by this Government.

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