The Government has announced plans for a Parliamentary bill it says will ensure vital public services maintain a “basic function” during industrial action.
The bill – dubbed the anti-strike law – which is due to go through Parliament in the coming weeks, will impact six key public services and see trade unions “bound to follow” the legislation in a bid to ensure minimum service levels and avoid a complete shutdown.
While it is yet to be formally announced, the Government release stated those who do not comply would be at risk of the employer bringing an injunction to prevent the strike from taking place, or seeking damages after the event if strikers and unions do not stick to their obligations.
However, Alexandra Mizzi, legal director at Howard Kennedy LLP, said the enforcement routes for employers “may not be very useful” as suing unions for damages would be “legally complex”.
Details on minimum safety levels for vital public services – including health, education, fire and rescue, transport, decommissioning of nuclear installations and management of radioactive waste and spent fuel and border security – would be determined on a consultation basis by “relevant Government departments”, it said.
But it has been confirmed these would be “in parallel” with the bill on ambulance, fire and rail services, and then set out in regulations due to follow the legislation.
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The impact of this bill could mean that employers are able to “effectively disregard strike action” or give it “less significance” in negotiations with unions, according to Daniel Zona, associate at Collyer Bristow.
“If made law, these changes would amount to one of the most significant curbs on the fundamental right to strike in recent decades,” said Zona. “It could, in effect, amount to forcing some workers to work against their will. The proposed changes could breach human rights legislation and potentially modern slavery laws,” he added.
The announcement follows a wave of industrial action from workers across the NHS, transport services, the Royal Mail and civil services over pay and working conditions in December last year, which saw Prime Minister Rishi Sunak threaten to bring in “tough new laws”.
Kate Palmer, HR advice and consultancy director at Peninsula, highlighted that those who participate in an illegal strike will “not be protected against dismissal”.
“It’s possible that employers may take action against [employees] for breaching their contract. However, this should not be seen as a green light to dismiss striking staff; a full and fair disciplinary process must be followed at all stages,” warned Palmer.
Meanwhile, Paul Nowak, general secretary at TUC said the bill offered “nothing more” to help with this year’s pay and criticised the Government for its u-turn from “clapping key workers to threatening them with the sack” if they take industrial action. Nowak also warned this could “push” people away from essential jobs in public services.
David Hopper, employment partner at Lewis Silkin, said there was “no guarantee” that the bill would make it past the House of Lords and that even if it did become law it may “not be effective”.
“Unions can be expected to resist the new requirements and will almost certainly challenge any enforcement action against them on human rights grounds. Minimum service levels also actually risk prolonging strikes, by preventing unions from being able to generate sufficient leverage through causing disruption to secure their demands,” said Hopper.
Arguments on human rights grounds have already been raised towards an earlier Government repeal of a law banning agency workers from covering strikes in July last year.
The High Court has since granted permission for 11 trade unions to launch a legal challenge against these regulations, which is expected to be heard in March this year.
Unions claimed the repeal was unlawful as the government failed to consult with them, breaching the Employment Agencies Act 1973, and a violation of the trade union rights – protected by Article 11 of the European Convention on Human Rights – which protects the right to form and join a union.