Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Strikes and other forms of industrial action by employees wanting more pay and better working conditions across a range of sectors including rail, education, and health have continued to be front-page news. This industrial action has had national impact, leading to increased wait times for medical appointments in the National Health Service and huge rail disruption.
The government has been talking tough about all this industrial action. With an election looming in the next year or so, it is understandable that the government might be keen to be seen to be taking action.
In this article, we discuss two legislative developments that have been introduced to either prevent or mitigate the effects of industrial action. However, as we will see, this tough approach has been (and may continue to be) subject to some serious challenges.
- First, new legislation has been made to prevent strikes in certain sectors from resulting in a total shutdown of services through the introduction of minimum service levels.
- Second, last summer, the government legislated to allow businesses to use agency workers to cover those on strikes (and other industrial action) to allow for continuity of service. This has recently been struck down by the courts.
The Strikes Act
The Strikes (Minimum Service Levels) Bill (we previously reported on earlier this year) received Royal Assent on July 20, 2023 (the “Strikes Act”). The Strikes Act has been introduced to ensure that minimum service levels (MSLs) are maintained during strikes in key sectors in order to “ensure the safety of the public and their access to public services” (see government announcement). The Strikes Act does not extend to industrial action short of a strike such as work to rule1 or an overtime ban.
The Strikes Act allows the Secretary of State to make regulations setting out MSLs for strikes in "relevant services." Those relevant services are health, transport, education, fire and rescue, border control, and nuclear decommissioning and radioactive waste management services. The Secretary of State must, however, consult before bringing in any such regulations. Consultations on MSLs in relation to ambulance, fire and rescue, and passenger rail services were launched in February 2023 and closed in May 2023. The government has said it will respond to these consultations in due course.
So, how does the Strikes Act impact employers, unions and employees?
- Work Notice: Where a union calls a strike in a service to which MSL regulations apply, the employer may give the union a “work notice.” Before giving a work notice the employer must have first consulted the union (about the number of persons to be identified and the work specified in the work notice) and had regard to any views expressed by the union in response.
A work notice should identify: (i) the workers that are required to work, and (ii) the work they are required to do to ensure the MSL is met during the strike. The work notice must not identify more workers than are “reasonably necessary” to meet the MSL requirement.
- Breach of Work Notice: When a union calls a strike, it may be liable for what is known as an “industrial tort.” This is usually the tort of inducing or procuring a breach of contract. However, the union will be protected from tort liability in respect of a strike or other industrial action if all the prescribed conditions set out in the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) are met.
Following the introduction of the Strikes Act, a union will lose this immunity in respect of an act done by it to induce a person to take part, or to continue to take part, in a strike, if: (i) the employer has given a work notice, and (ii) if the union fails to take reasonable steps to ensure compliance of the work notice by all union members identified in it. The government has said that it will, over the summer, launch a consultation on a statutory code of practice which will set out the reasonable steps a union must take to comply with a work notice.
- Automatic unfair dismissal protections: You may know that striking employees also have some automatic unfair dismissal protections under TULRCA. The Strikes Act modifies these so that any employee identified in a work notice who takes part in the strike to an extent not permitted in the work notice will lose their automatic protection from dismissal.
The Strikes Act changes UK union law and has not passed without significant criticism along the way. For example, the Trades Union Congress has said that the Strikes Act is a “wrecking ball” to the right to strike and that it won’t rest until the legislation is repealed. Criticisms of the Strikes Act have included its potential infringement of Article 11 of the European Convention on Human Rights (ECHR), which prevents unlawful interference with the rights of trade unions and their members.
In addition, given that the Strikes Act gives the government the power to prescribe MSLs by statutory instrument, these future regulations could be open to challenge. Given the apparent entrenchment of positions of both trade unions and the government, this seems a real possibility. In view of the case below, the government would do well to ensure that it consults fully before prescribing any MSLs.
The future of the Strikes Act also may be short-lived as the Labour Party has stated that it will repeal any laws brought in by the current government to restrict the rights of striking workers, although it remains to be seen what will be in the Labour Party manifesto. The Scottish government in April 2023 also declared in a speech that it will not issue or enforce work notices during industrial action.
Impacted by the Strikes Act, the International Trade Union Confederation has also recently downgraded the UK's rating in its 2023 annual Global Rights Index from a three to a four (on a scale from one to five) indicating a systematic violation of rights. The report index uses strong language in its description of UK developments: “In the United Kingdom, union busting, attempts to introduce legislation curtailing the right to strike and protest, and violations of collective bargaining agreements have become systematic and led to the country’s rating dropping from three to four.”
Further, the International Labour Organization (ILO) has earlier this year suggested the government seek "technical assistance" from it and asked that the government ensure that current and future legislation comply with Convention 87 (the Freedom of Association and Protection of the Right To Organise).
In short, this legislation and resultant MSL regulations are likely to have a rocky future, not least in light of the seemingly increasingly litigious atmosphere around this topic.
There has been further trouble for the government over the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the “Amendment Regulations”). This is a rare case of regulations being quashed by judicial review. It is yet another blow to the government’s strategy on dealing with striking workers.
To give some history, regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (the “Conduct Regulations”) had prohibited employment businesses from supplying agency workers to employers to replace workers (or those covering for workers) who were taking part in official industrial action. Note that this went further than just striking workers.
A previous government had initially consulted on potentially repealing this regulation in 2015. Following that consultation, in 2016 the government decided to drop any plans to proceed with the repeal of regulation 7.
Moving forward to the summer of 2022, in response to the mounting industrial action across several sectors, the government decided to repeal regulation 7 to allow employers to engage agency workers to cover those on strike (or those covering colleagues on strike) by introducing the Amendment Regulations. It did not undertake any further consultation, relying on the consultation that had taken place some seven years previously. That turned out to be a mistake as many trade unions were not happy about this and 13 of them applied for a judicial review of the government’s decision to make the Amendment Regulations.
In R (ASLEF and others) v Secretary of State for Business and Trade  EWHC 1781 (Admin), the unions argued that the Secretary of State had: (i) failed to comply with his statutory duty to consult before making the Amendment Regulations; and (ii) breached the duty under Article 11 of the ECHR to prevent unlawful interference with the rights of trade unions and their members (this point ultimately did not need to be decided).
The Secretary of State contested both grounds of the application, arguing that the duty to consult was met by the 2015 consultation, but also that it was highly likely that the outcome would not have been substantially different if there had been consultation. He also argued that revocation of regulation 7 did not amount to an interference with the rights of trade unions under Article 11 of the ECHR, and that, in any event, any interference was proportionate.
The unions succeeded in their battle as the High Court allowed the application for judicial review and quashed the Amendment Regulations. The court considered that the Secretary of State had failed in his statutory duty to consult, even if the 2015 consultation had been sufficient to comply with the duty, the Secretary of State did not in fact consider the responses to that consultation. Although the judicial review challenge succeeded on that basis, the court also went on to consider that the decision not to consult further about the revocation of regulation 7 in 2022 was unlawful and irrational. The court did not consider the arguments over breach of Article 11 of the ECHR. This issue may of course come back should the government decide to appeal or attempt to bring the regulations into effect in some lawful way.
The effect of the courts deciding to quash the Amendment Regulations is that from August 10, 2023, the law will revert to the position before July 21, 2022, when the Amendment Regulations came into force – a blow to the government’s plans.
If the government, however, remains determined to revoke regulation 7, it could decide to consult in compliance with the statutory obligations and potentially (following the outcome of any such consultation) decide, if the evidence and rationale provides, that regulation 7 should be repealed. Alternatively, it could appeal against the court’s judgment. Both of these are lengthy processes, with no certainty for the government as to outcome.
We wait to see the government’s next steps in respect of the Strikes Act and any future proposals to revoke regulation 7 of the Conduct Regulations or to appeal against the decision. What is clear is that this is an area which is highly politicized and on which the outcome of the next election will have big consequences. Any steps taken to restrict union rights will not go unchallenged by unions, particularly off the back of their most recent win. Employers too may be hesitant to rely on their rights to issue work notices (once the MSL regulations are in force) or in respect of any further legal developments, given the landscape may continue to change and that unions are not afraid to challenge.
Watch out for any developments in the next year or so.
1 “Work to rule” is a form of industrial protest whereby employees work according to the exact terms of their contract without performing additional work or taking on additional tasks.