The UK government is set to introduce laws to limit the disruption of strike action. From summer 2022, public sector workers have been striking over conditions and pay. Railway staff, nurses, teachers, bus drivers, firefighters and others all withdrew their labour in 2022 and the disputes have continued in to 2023. Nurses for example, want an above inflation pay rise of 17% but offers to date have been below inflation. In response to the impasse and accompanying disruption, on January 10 2023, the government announced the introduction of the Strikes (Minimum Service Levels) Bill ( “the Bill” ). Under the Bill, workers’ ability to strike would be restricted by imposing minimum service levels on key public services. Organisations could then fire staff who ignore “work notices” that require them to work to maintain these minimum service levels. Trade unions can also be sued for damages if these orders are ignored. The restrictions will apply to health services, education, fire & rescue, transport, border security, nuclear energy management.
The government says this legislation is a last resort to ensure the safety of the wider public. Trades Union Congress (TUC) General Secretary Paul Nowak however, said the proposals were “undemocratic, unworkable, and almost certainly illegal.” At the time of writing, the Bill has passed its second reading in the Commons and is progressing. This article will explore the legality and practicality of the minimum service levels proposed in the Bill.
Legal
There is a significant question mark over the legality of the Bill but as usual, the devil is in the detail. There is no automatic right to strike under UK law but strike action is legal and protected in some cases. This is due to the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), which ties in with Article 11 ECHR. TULRCA gives trade unions and employees permission to strike without being sued by their employer, provided certain conditions are met. Typically, three conditions must be met. Firstly, there must be a trade dispute between workers and their employer. Next, a ballot must be held that typically must achieve a 50%+ turn out with a majority of these voting in favour of action. Also, adequate notice must be provided to the employee. Lastly, there cannot be an unlawful reason behind the strike.
Article 11 of the European Convention on Human Rights (ECHR) gives the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of their interests. Societies may however, introduce restrictions on the exercise of those rights where “necessary….in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”. Evidently, this gives the UK government a lot of legal scope to introduce minimum services levels on public safety grounds. The Bill could be challenged on human rights grounds however, if the stipulated service levels are considered more than “necessary”. Note, the UK remains committed to the ECHR even after Brexit and therefore, the UK government can still technically be brought before the European Court of Human Rights.
The minimum service levels have not yet been determined for each sector so the legality will remain a question mark until such time. There will be much debate over what exactly are minimum safety levels in each sector and who defines this. In any case, whatever levels are set, there will undoubtedly be a legal challenge against the Bill, if it passes through the houses.
Practicality
The government has said the Bill is essential to keep our country functioning. Citizens rely on key services and the strike action puts lives at risk. Where nurses and paramedics strike for example, lives are being lost as people can’t get the urgent care they need. It is understandable that the government wants to protect public health and safety by ensuring services function.
Those within the industry however, say that on non-strike days, services are not functioning properly to begin with. Particularly in healthcare, services are severely understaffed and staff are overworked. They argue that this is costing more lives than the strike action. In order to resolve this, public services need better recruitment and retention. Currently, pay and conditions are the primary factors preventing this. While minimum service levels would help maintain some level of service on strike days, the chronic issues within our public services are not being resolved.
Securing an adequate minimum service level will be difficult. Any agreement must be hashed out between unions and employers to determine just how much service should operate. On the railways for example, for a minimum of 40% of trains to run, far more than 40% of staff will be required to work in order for the services to run safely. Therefore, if the vast majority of staff are required to work to maintain a minimum service level then essentially, the majority of staff have no right to withdraw their labour, creating a potential human rights issue. Furthermore, this whole process could takes months, while the fundamental issues at hand are not being resolved.
Termination
A key issue with the practicality of the Bill is the threat of termination for ignoring work orders. This is undoubtedly the most myopic element of the Bill. Services in education and healthcare for example, have severe staff retention issues as it is. Nearly a third of teachers who qualified between 2010 and 2020 have left the profession (link). In the year to June 2022 alone, a record 40,000 nurses left the profession, nearly 1 in 9 of the entire workforce (link). To fire or threaten to fire public sector workers when they are already leaving in such high numbers can only be described as short-sighted, at best. The impact on morale of existing staff and on the ability to recruit new staff would be devastating. The concept of trying to maintain a minimum safety level is reasonable, but the threat of dismissal is impractical and potentially more dangerous to public services than the strikes themselves.
Other jurisdictions
Advocates of the Bill often cite other European jurisdictions that implement minimum service levels. Rishi Sunak has noted that France, Italy and Spain all successfully operate minimum service levels for key sectors, so the UK’s plans should not be controversial. Commentators were quick however, to highlight fundamental differences between European models and the UK’s proposed Bill. Most importantly, none of the European minimum service level arrangements result in employees being fired if the agreed levels are not met. Furthermore, none of these countries apply minimum service level requirements to transport staff.
It is worth noting however, that some jurisdictions ban “blue light” services from striking altogether such as Canada and Australia. Imposing such a ban in the UK however, would be an anathema to the public and compound the existing problems.
Conclusion
Taking all into account, the Bill may be legal depending on the level of service that must be maintained. If the required levels are too high this could exceed the realms of necessity and breach human rights law. From a practical perspective however, the Bill is undoubtedly a poor move. The recent strike action has been driven by years of stagnant wages and declining work conditions in the public sector. Recent spikes in inflation due to the war in Ukraine have simply been the trigger that set off this chain of events. With staff leaving the public sector in droves due to poor pay, increasing workloads and chronic staff shortages, public services are at breaking point. Proposing a minimum service level bill in response to this situation does nothing to resolve the fundamental issues at hand and further antagonises workers.
Fundamentally, even if the disputes are resolved there are still significant underlying issues. Many of our public services are in dire need of wholesale reform as their current models are not fit for purpose. Successive governments have promised reform and failed to deliver. In the short-term however, there are only three outcomes of these industrial disputes. One outcome is that a suitable pay and conditions deal is agreed between the parties. Alternatively, workers are told to accept current pay and conditions, or lastly, workers resign en masse, or are fired. The latter two do not resolve the situation and create more problems, so it is critical that a deal is reached. The government recognises that in financials services, higher wages attract and retain top talent, hence why the government removed the bankers’ bonus cap. This same logic should be applied to our core public sector workers so a fair pay deal should be reached and more staff can be recruited. In any case, even if the Bill comes into force, it represents nothing more than paper over the cracks.
