Workers identified as having to provide minimum service would not be protected from dismissal for taking strike action.
The Government has brought forward a bill which, if passed, would impose minimum service levels during strike action in a number of sectors, including education.
The Strikes (Minimum Service Levels) Bill (the Bill), which had its first reading on 10 January 2023, would enable the Secretary of State to make "minimum service regulations" in relation to health services, fire and rescue services, education services, transport services, decommissioning of nuclear installations, management of radioactive waste and spent fuel, and border security.
Where minimum service regulations are put in place, employers facing strike action would be able issue a "work notice" identifying individuals who are required to work during the strike in order to ensure those minimum levels of service, and the work those individuals must carry out. The employer would be obliged to consult with the trade union before any such work notice is issued.
The Bill sets out amendments to the current strike legislation which increase the risks of taking strike action for trade unions and workers.
In general terms, if a strike is lawful trade unions are protected from being sued by employers for losses arising from inducing workers to strike. The minimum service level legislation would bring in additional requirements which trade unions have to meet for a strike to be lawful. If passed, the Bill would mean that trade unions who had failed to take reasonable steps to ensure that identified members of the union complied with a work notice would be liable for losses arising from that failure. Employers could also apply to the court for an injunction to stop strike action where work notice requirements were not complied with.
Employees who are dismissed because they have taken strike action can be found in some circumstances to have been automatically unfairly dismissed. The proposed legislation would mean that employees would not benefit from this protection if they had taken strike action after they have been identified in the work notice as having to work during the strike.
Comment
It remains to be seen whether the Bill is passed by Parliament, and then whether minimum service regulations are in fact put in place in relation to each of the sectors listed above. A separate bill providing a mechanism for minimum transport service levels to be imposed (where they are not otherwise agreed between employers and unions) was introduced in Parliament in the Autumn and is awaiting its second reading.
What would minimum service levels in the education sector entail, and would workers or unions be able to challenge such an assessment? Given the knock-on effect on working parents potentially having to provide childcare on strike days, would they require a minimum staffing level to enable all primary age children to attend school? Would they require all classes preparing for external examinations to be delivered as usual? Would they involve the provision of remote education in line with Covid-related measures? Or would they simply require sufficient staffing for all pupils to be able to attend school on strike days?
It has been reported that the Government does not plan to impose minimum service levels in the education sector if voluntary agreements on such levels can be reached, and that the Department for Education is currently redrafting its outdated non-statutory guidance from 2016 on Handling Strike Action in Schools.
Trade unions across different sectors have very strongly criticised these proposals, pointing out that unions and employers already work together to ensure that a minimum level of service is provided in sectors where ceasing work could endanger life. They have also suggested that the threat of dismissing workers would not be credible where staffing levels are already seriously stretched. Employers should be aware that the law setting out protections for employees who are dismissed for taking strike action is very complex and they should seek legal advice before taking such a step.
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