Trade Unions and the Authoritarian State: Strikes (Minimum Service Levels) Act 2023 and the Proposed Code of Practice

Prof Keith Ewing and Lord John Hendy KC respond to the proposed code of practice on the Strikes (Minimum Service Levels) Act 2023

Commentary icon9 Sep 2023|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

Lord John Hendy KC

Chair of the Institute of Employment Rights

The Strikes (Minimum Service Levels) Act 2023 received the royal assent shortly before the summer holidays. As readers of these columns will know, the Act imposes new and unprecedented restrictions on the right to strike, these restrictions extending potentially to six sectors: health services; fire and rescue services; education services; transport services; nuclear decommissioning; and border security.

The Act authorizes ministers to make regulations for minimum service levels to be provided during a strike in each of these sectors. Where the regulations are made, an employer will be authorised to issue a work notice to a union to ensure that the service levels are met. The effect of the work notice is that employees will be required to attend for work during the strike and to perform duties demanded by the employer.

The only constraints in the Act are that a work notice must not identify more persons than are reasonably necessary for the purpose of providing the levels of service under the minimum service regulations, and that the work notice must be given to the union at least seven days before the first day of the strike. Note that the work notice is to be issued to the union not the employees affected directly The union is then required to take ‘reasonable steps to ensure that all members of the union who are identified in the work notice comply with it’.

If the union fails to take reasonable steps, it loses all legal protection for the industrial action, and its members lose their automatic unfair dismissal protection for taking part in a strike. This means the union must take active steps to break its own strike or risk an injunction by an employer requiring the action to be called off. The question which arises is precisely what it means to ‘take reasonable steps’ to ensure that its members go to work and break the strike. There is nothing in the Act to provide any guidance. Instead the government has issued a draft code of practice on which it is currently ‘consulting’.

As the consultation document makes clear, the Code of Practice once introduced will not be legally binding as a matter of legal theory. But it will have to be taken into account by a court. And it will almost certainly be binding as a matter of everyday practice, in the sense that alleged non-compliance with the Code by a union will be enough for an employer to get an injunction and render the strike unlawful. Experience has shown that there is a relatively low barrier that employers have to cross in order to persuade a judge to order a strike to be called off on grounds of its supposed illegality.

As the IER predicted when the Bill was first introduced, the duty to take reasonable steps will impose intolerable obligations on trade unions. This is vindicated by the different steps with which the Code of Practice will expect affected unions to comply. The first – on receipt of a notice – is a requirement to identify which of the workers in the work notice are members of the union. The work notice communicated to the union will include both members and non-members alike. Having identified which of the workers in the work notice are members, the union will be required to issue each member personally with a compliance notice.

In a big dispute (such as the recent teachers dispute) this means that the union may be required to sift the names of thousands of workers to identify its members and then communicate with them. Equally troubling is the information the compliance notice must contain. Thus, the union will be expected to advise members ‘not to strike during the periods in which they are required by the work notice to work’, and also ‘encourage them to comply with the work notice’. This is to be done electronically or by first class post, and is to be addressed to the member individually.

As might be predicted, the draft Code of Practice does not always explain legal issues with the clarity that might be expected when setting out the information to be included in the compliance notice. Thus unions are advised to tell members that they should receive from the employer a statement that the member is ‘an identified worker’ and as a result ‘must comply with the notice given to the union’. In fact, there is no obligation under the Act for the employer to communicate with workers unless the employer wants to keep open the option of sacking people.

And it is not the case that workers ‘must comply’ with a work notice. Forced labour may be an authoritarian fantasy. But there is not yet any power to compel people to work. Instead as the draft points out, a worker who has been notified by the employer that they are named in the work notice may be dismissed, and be denied the automatic right not to be unfairly dismissed for taking part in the strike. But as the draft does not point out, it may still be possible to bring an unfair dismissal complaint under the general law, which the government ought to make clear.

Apart from telling people that they are required to work, the compliance notice should also contain information telling the recipient to ignore any communications from the union encouraging people to strike. It should also provide re-assurance that the union will take steps to ensure that picket supervisors will use ‘reasonable endeavours’ to ensure that pickets do not ‘seek to persuade’ someone subject to a work notice to take part in the strike. It is not clear how any failure on the part of the supervisor will affect the already restricted legality of the picketing.

At the same time or shortly after it sends the compliance notices to members affected, the union will also be expected to send what is referred to as an information notice to all members personally. This too should be done electronically or by first class post. The information notice should contain similar information to that contained in the compliance notice. As suggested by the requirements of the compliance notice, the union thereafter must take steps so that picket supervisors ensure that pickets do not seek to persuade anyone subject to a work notice to participate in the strike.

The real giveaway, however, is the additional suggestion that ‘the picket supervisor, if present, should encourage any such worker to attend work and not to take strike action which would be inconsistent with the work notice’. This is in addition to the duty of the union in the compliance notice to encourage workers to strike-break. Here we have a clear and compelling insight that the Tory ambition is to convert trade unionists into agents of an authoritarian state to subvert not only lawful strikes called under tight conditions, but also freedom of association, one of the essential building blocks of a democratic society.

[This article first appeared in the Morning Star Newspaper on the 9th of September 2023]

Professor Keith Ewing

Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.

Lord John Hendy KC

Lord Hendy KC is Chair of the Institute of Employment Rights. He is a barrister specialising in industrial relations law, based in Old Square Chambers, London. He is President of the International Centre for Trade Union Rights (ICTUR) and a Vice President of the Campaign for Trade Union Freedom.