Leading employment lawyers warn that Strikes Bill will give Ministers “unfettered power” to restrict the right to strike.

Joint statement, from legal specialists, including the IER's Professor Keith Ewing, outlines threat

3 Apr 2023| News

We the undersigned are specialists in employment law.

Between us we have decades of experience as academics and practitioners in analysing the existing statutory regime for industrial action and the wider industrial relations landscape in Great Britain and internationally.

In our view the Strikes Bill (Minimum Service Levels) Act would place an unacceptable restriction on a worker’s right to take strike action to defend their terms and conditions of employment. It adds to an existing body of highly restrictive laws on strikes, including the Trade Union Act 2016. The cumulative effects of this legislation would place the UK well outside the mainstream of industrial relations in comparable countries.

The right to strike is guaranteed in international law by a succession of important treaties. These include the Council of Europe’s Social Charter of 1961; and the UN’s International Covenant on economic, social and cultural rights of 1966. It has also been recognised as a human right by the International Labour Organisation, and by the European Court of Human Rights. Our obligation to respect ILO conventions and the Social Charter was reinforced by the 2020 Trade and Cooperation Treaty with the European Union.

In Great Britain the right to strike is already heavily limited. The statutory regime places significant requirements on trade unions contemplating industrial action including the need to conduct a postal ballot under highly complex rules, the need to clear high thresholds of support (even higher in ‘important public services’), and to give 14 days’ notice of action.

The Strikes Bill as drafted would remove none of these requirements while placing a hugely onerous new set of requirements on unions and union members.

The legislation gives a Secretary of State a largely unfettered power to determine what a minimum level of service should be in a particular service, and consequently the circumstances in which and the extent to which workers in these sectors can lawfully exercise their freedom to strike. If a strike takes place in these services, an employer will have the power to issue a work notice effectively to requisition workers during the strike. 

Trade unions will then be under a duty to take “reasonable steps” to ensure that workers comply with the work notice. Trade unions will thus be required by an employer acting with the authority of the state to take steps actively to undermine its own strike, for which its members will have voted in a ballot with high thresholds of support. Such an obligation is unprecedented in British law, and it places trade unions in an intolerable conflict with their own members.

The legislation also removes significant protections for individual workers exposing them to the risk of dismissal and victimisation. It will do nothing to resolve the current spate of industrial action, which will be settled by negotiation and agreement, rather than by the introduction of even tighter restrictions on trade unions.

The proposed minimum service legislation constitutes a further departure from established norms and treaty obligations. It would make Great Britain an outlier among comparable countries. If ministers are keen to learn from overseas, a more promising place to start would be the creation of a culture of social dialogue and balanced cooperation through the introduction of sector-wide collective bargaining, together with the clear legal recognition of a positive right to strike.

Professor Alan Bogg, Professor of Labour Law, University of Bristol

Professor Nicola Countouris, Director of the Research Department, European Trade Union Institute (ETUI) and Professor in Labour Law and European Law, University College London

Professor Ruth Dukes, Professor of Labour Law, University of Glasgow

Professor Keith Ewing, Professor of Public Law, King’s College London

Professor Lydia Hayes, Professor of Labour Rights, University of Liverpool

Dr Ioannis Katsaroumpas, Lecturer in Employment Law, University of Sussex

Professor Aristea Koukiadaki, Professor of Labour Law and Industrial Relations, Head of The University of Manchester Law School

Professor Virginia Mantouvalou, Professor of Human Rights and Labour Law, University College London

Dr Ewan McGaughey, Reader in Law, King’s College London

Professor Tonia Novitz, Professor of Labour Law, University of Bristol