According to the Guardian newspaper, trade union leaders are considering organising a wave of synchronised strikes this winter in an attempt to win cost of living pay rises. The idea is that once a union obtains a mandate for strike, they will co-ordinate its strike days with other unions to cause maximum disruption. For example, road officials could take action on the same day as rail workers, and Border Force officials on the same day as airport staff. That could mean that some forms of transport would be ground to a halt. 

In an attempt to ensure that people can still get to work and go about their normal business during strike action, the government has introduced the Transport Strikes (Minimum Service Levels) Bill which had its first reading on 20 October. 

What will the Bill do?

If it becomes law, the Bill will amend S.219 of the Trade Union and Labour Relations (Consolidation) Act 1992. This means that trade unions will lose their immunity from liability for industrial action if they fail to take reasonable steps to ensure that the people who need to work, to keep the service running, do not take part in the strike.

Before an employer can request that certain people turn up for work during a strike it has to have in place a minimum level of service agreement. That has to be agreed with the union within three months. And, if that doesn't happen the Central Arbitration Committee can get involved to determine the issue. The Bill also allows the Secretary of State to introduce regulations to decide minimum service level agreements.

How do the parties decide what is an appropriate minimum level of service?

The parties have to consider any issues have been raised during consultation, plus what are referred to as 'relevant matters'. Currently, these provide that the service must: 

  • protect the health and safety of members of the public and of people who are involved in providing transport services
  • protect national security
  • ensure that people are able to receive health care and social care services 
  • ensure that people aged under 17 are able to receive education
  • ensure that people are able to travel to and from their place of work or education
  • avoid damaging the economy or the environment

How many employees will be asked to work during strike action? 

That depends on the minimum level of service agreed but, it must not be more than 'reasonably necessary' to provide that service. 

How will employees know if they are required to work during a strike?

The employer has to serve a 'work notice' on the union to identify which members of staff need to work to keep the minimum service going, and what work they are required to do. It must not single out union members. 

Before it serves the notice, it has to consult with the union about who to include and have 'regard to their views' (which doesn't mean they have to be agreed). Once the notice has been issued, the union has to take reasonable steps to ensure that the people identified in it do not take part in the strike action.

What's a reasonable step in this context?

That's not clear. The explanatory notes says that guidance will be made available to help unions decide what they have to do to stay on the right side of the law. It suggests that it might include unions advising staff that the strike is subject to minimum service requirements and explaining what this means.  

What happens if the union doesn't comply with this and/or a named employee refused to come into work?

If the union doesn't take reasonable steps to prevent employees named in the work notice to continue to work on strike days, it will lose its immunity from tort proceedings under s219 TULRCA 1992 and could be sued for damages.

An employee who goes on strike in breach of the work notice will not be automatically protected against unfair dismissal.   

Will this legislation impact employers who don't recognise a union?

Yes. The Bill applies to employers who deliver specified transport services, and unions which are capable of affecting the employers’ delivery of those services. This means that unions that have members operating in a workplace are bound by a minimum service specification, regardless of whether their union is recognised by the employer. 

Doesn't this interfere with the right freedom of assembly and association contained in the Human Rights Act?

Potentially, yes. Article 11 provides that 'everyone has 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 his interests'. The European Court of Human Rights has made it clear that this includes strike action.

However, this right is qualified which means that it's possible for the government to justify restricting it. The Bill includes a declaration that it complies with convention rights and the government explains its rationale for asserting that here.

When will this come into force?

We don't know. No date has been scheduled for the second reading, and it doesn't look as though it will be in place the wave of transport strikes expected over the winter.

We've got so much political uncertainty at the moment, it's possible that a new PM will drop the Bill (unlikely) or that Parliament will be dissolved before it's passed into law. Whilst the next general election doesn't have to take place until January 2025, the clammer for an earlier date is building. Much will depend on whether the next PM has the confidence of MPs.

If it does become law, I'd expect the unions to challenge the lawfulness of it in the courts. 

Unions have demonstrated a willingness to fight back against, what they see, as the erosion of the right to strike. A number of unions came together to challenge new legislation which allows agency staff to cover striking workers which came into force in the summer on the basis that it undermines the right to strike protected under the European Convention on Human Rights. 

Is the government likely to introduce similar legislation for other sectors?

We don't know. It's certainly possible given the number of sectors that are threatening strike action including education and health.

Our newsletters

We publish monthly employment newsletters. If you'd like to be added to the mailing list, please let me know. 

Our fixed price employment law service

We also have a fixed price employment law service. Please contact Gordon Rodham if you'd like to find out how we can help you avoid these sorts of problems with our fixed-fee annual retainer, or flexible discounted bank of hours service.