Mon 30 Jan 2023

Strike action in the public sector – what effect will the legislation have?

There has been a lot of press attention recently about the steps the UK Government has been taking to mitigate the effects of strike action.

What changes have been introduced?

Last year we saw new legislation being implemented which impacted on strike action.  The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (“the Agency Amendment Regulations”) came into force on 21 July 2022.  It removed the restriction that had previously been in place preventing employers from using agency workers to replace worker who were taking strike action.  At the same time, the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (“the Damages Order”) came into force and very significantly increased the maximum damages that can be awarded against a trade union when industrial action is found to be unlawful.  For the largest unions this limit was increased to a million pounds.

We also saw a new Bill being introduced to Parliament at the end of 2022 – the Transport Strikes (Minimum Service Levels) Bill (“the Transport Strikes Bill”).  This has since been superseded (see below) but would have required a minimum level of services to be maintained during strikes by certain transport services.  It also placed an obligation on unions to take reasonable steps to ensure that those required to work to ensure the minimum service requirement did not take part in the strike.  If the unions failed to do so they would have lost their immunity from liability for industrial action – with the risk of the increased levels of damages set out in the Damages Order.  However, as strike action spread throughout different sectors, in January 2023 this Bill was superseded by the Strikes (Minimum Service Levels) Bill (“the Strikes Bill”).

So where are we now?

In December, the High Court confirmed that challenges to the Agency Amendment Regulations, made by a number of different unions, have all been given permission to proceed.  These challenges will be by judicial review of the Agency Amendment Regulations with the unions arguing that they are unlawful because the Secretary of State failed to consult with them and that they violate fundamental trade union rights protected under the European Convention of Human Rights.  The case is expected to be heard in late July. 

What about the Strikes Bill?

The Strikes Bill is significantly different from its predecessor, the Transport Strikes Bill.  As the loss of the reference to Transport suggests, it will affect other public sector services.  It will amend the Trade Union and Labour Relations (Consolidation) Act 1992 to allow the UK Government to set minimum service levels during strike action.  For fire, ambulance and rail services the UK Government intends to consult on adequate levels of coverage.  Consultation by relevant Government departments will proceed in parallel with the progress of the Strikes Bill and regulations will then set out the minimum service levels that the unions will have to comply with.  If the unions do not do so then employers may bring legal proceedings to prevent the strike action or seek damages afterwards if obligations are not complied with.

Other public sector services covered in the Strikes Bill include health services, education, nuclear decommissioning and border security as well as other transport services.  However, the UK Government says it would only look to consult on minimum service levels in relation to these services if voluntary positions cannot be reached.  Staff who do not comply with the minimum service levels will lose their employment protections and risk being dismissed.

Will the Strikes Bill ever become law?

The Strikes Bill is certainly likely to have a rocky passage through the House of Lords, and unions may also seek to challenge it.  However, this type of legislation is not as uncommon as might initially be expected.  Spain, Italy and France (who are also signatories to the European Convention on Human Rights and who are therefore also subject to the Article 11 Freedom of Assembly provision that unions have relied upon in the past to protect the right to strike) already have statutory minimum service levels in place. 

When it comes to “blue light” services, some countries, including Canada, Australia and some parts of the United States have an outright ban on strike action.  Whether the Strikes Bill will make it to the legislative books either in its present form, or at all, remains to be seen.  If it does become law, whether it stays there for very long will depend on the outcome of the next General Election, which is likely to take place next year, as the Labour Party have said they will overturn the legislation if they win.

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