Union given High Court permission to challenge Government’s new strike restrictions

PCS Union in first legal challenge to Minimum Service Levels. High Court gives permission for judicial review

10 May 2024| News

The Public and Commercial Services Union (PCS), representing approximately 185,000 UK civil service workers, has been granted permission by the High Court to pursue a judicial review, challenging the government’s decision to impose minimum service levels during strikes.  

The Court has acknowledged the potential conflict between the legislation introduced and the requirements of Article 11. The case will now go to a substantive hearing later this year.  

The PCS, represented by the Trade Union Law Group at Thompsons Solicitors, argue that the Act infringes upon the rights protected under Article 11 of the European Convention on Human Rights (ECHR), which safeguards the right to freedom of association, including the right to form and join trade unions and take industrial action.  

The Strikes (Minimum Service Levels) Act 2023 gives new powers to employers to impose minimum service levels during strike action in defined sectors, including border security services, if they choose to do so.  

This would be achieved by relevant employers serving ‘work notices’ specifying the workers required to undertake duties during periods of industrial action. If workers named in the ‘work notice’ do not comply, or their union does not take reasonable steps to ensure its members comply, they will lose their legal protections.  

Trade unions have heavily criticised the legislation as not complying with international labour standards and imposing further restrictions on the internationally recognised right to strike in an already severely restrictive UK legislative framework.  

The regulations make provision for border services to be ‘no less effective’ on each strike day compared to when there is no strike.  

In a letter before action sent in January this year, the PCS has said they will argue that the minimum service level fails to give lawful and proportionate protection to the right to strike, protected by Article 11 of the European Convention on Human Rights. 

Former PCS General Secretary Mark Serwotka announced this first legal challenge to the Strikes (Minimum Service Levels) Act at the “Protect the Right to Strike” march in Cheltenham on 27 January 2024. 

In his passionate address to supporters at the event Mr Serwotka remarked,

“Forty years after Margaret Thatcher banning unions at GCHQ, a Conservative government is once again attacking trade unions. It is fitting that today, as we remember the courage of those who refused to surrender their trade union memberships, we announce our commitment to challenge this new injustice through the courts.” 

Following receipt of a response to its Pre-Action letter PCS applied to the court for permission to proceed with its judicial review application. The court has now determined the case should proceed to a full hearing where both sides will present arguments relating to the lawfulness of the legislation. 

Neil Todd, partner at Thompsons Solicitors and representing the PCS, stated,

“The Border Security Minimum Service Regulations provide an unfettered right to undermine the right to strike in that sector, which PCS contends is exceeds powers under the Strikes Act and violates international law.”

Current PCS General Secretary Fran Heathcote said:

“As has been their traditional role, a Conservative government is once again attacking trade unions. Our members in the Border Force took highly effective strike action last year which helped win serious concessions from the government. The government is therefore now effectively attempting to ban them from taking strike action through this draconian legislation.

PCS will not stand by and allow them to erode our members’ rights and freedoms and we welcome the Court’s decision to allow our claim to proceed to judicial review.”