Industrial disputes are resolved through collective bargaining where a union is recognised on behalf of the workforce affected. Strikes and other forms of industrial action are always a last resort after attempts at dispute resolution have failed. Not least because participating workers almost always lose a day’s wages on strike days. The UK’s industrial action law is notoriously complex and creates substantial administrative challenges and significant legal risks for trade unions that endorse or authorise such action.
The Strikes (Minimum Service Levels) Bill is the latest primary legislation from the Conservative party that seeks to dictate limitations on the way in which industrial action can take place. There is an important contrast with the Transport Strikes (Minimum Service Levels) Bill introduced last October, as the minimum service levels in this bill are no longer negotiated between collective parties, but rather they are instead imposed by secondary legislation.
In simple terms, the bill mandates a new power for the secretary of state to set ‘minimum service levels’ through secondary legislation and for employers to serve ‘work notices’ in ‘relevant services’, specifying which workers must work during a strike and what work they must carry out. Those ‘relevant services’ are: health; fire and rescue; education; transport; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security.
Unison, like other unions with members in these sectors, recognises the importance of making ‘life and limb’ cover arrangements where it is necessary. This forms part of our governance and was expressly recognised by the government in its own impact assessment last October for the Transport Strikes (Minimum Service Levels) Bill. These arrangements are an example of the responsible way in which industrial action takes place for workers providing essential services of fundamental importance, such as in health services.
There is no limit on the minimum level of service that might be imposed under the bill nor certainty on what might be included within the broad categories of relevant services. The scope for misunderstanding (at best) or deliberate exploitation (at worst) seems obvious and trite. The bill will not fix the underlying problem at the heart of the industrial dispute, typically around pay or terms and conditions of work, so seems an unwelcome distraction for all concerned.
Despite confusion on how it might operate in practice, the bill introduces a requirement for employers to identify the individuals who are required to work during the strike to meet the minimum service level imposed. This is likely to involve some unexpected challenges for employers. For example, there is a range of requirements for employers, as data controllers, to consider before processing this type of special category data relating to trade union membership that must be followed. Trade unions must be consulted with beforehand but the employer need only ‘have regard to’ the views expressed in response. The timescales are impracticably short with only four or seven days’ notice required before the industrial action is due to take place. This being in sharp contrast to the labyrinthine notice and ballot requirements for trade unions before they can consider calling on members to take industrial action.
The danger and financial risks created for trade unions are vastly increased by the bill. Where a union is served with a work notice but fails to ‘take reasonable steps’ to ensure that all union members who are identified comply with it, then the union will lose it statutory immunity in tort and could face up to £1m in damages that apply from the entirety of the action. It is difficult to know what steps will be viewed by a court as ‘reasonable’. Given the enormous costs that are already incurred by unions in following the statutory requirement to conduct industrial action ballots by postal vote with independent scrutineers, and the significant democratic mandates which must be obtained before strikes take place in essential public services in the UK, no sensible comparison can be drawn with the systems for minimum service levels that are followed in other countries.
Perhaps the most chilling feature is that the bill creates a strong deterrent effect on individual workers who participate in industrial action and the activities of their trade union. Where a union fails to take ‘reasonable steps’ to ensure compliance with the notice, every worker could lose their statutory right not to be unfairly dismissed for taking part in industrial action. In addition, any worker identified in a work notice who for whatever reason fails to comply would lose the current statutory protection against unfair dismissal. This is already a very limited protection that only applies where the dismissal takes place within the first 12 weeks of taking protected industrial action.
It rather seems to reinforce the overtly hostile manner in which the current government views industrial relations, an ideology that leaves employers to face numerous legal challenges against the fairness of their decision-making.
Bruce Robin is a legal officer and in-house solicitor for public service union Unison
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