Unions remain strongly opposed to the controversial Strikes (Minimum Service Levels) Act, which removes the rights of employees in public sectors, such as healthcare and transport, to take part in industrial action without being sacked. The TUC has even lodged a case with the International Labour Organization, the UN watchdog for workers’ rights, claiming the law “falls far below” international legal standards.
Undeterred, however, the government has come under fire once again after announcing plans to demand that ‘minimum service levels’ are also met during strike action in schools and colleges.
The legislation says strikes could be deemed illegal if minimum levels of service are not met and requires unions to take ‘reasonable steps’ to ensure their members comply.
Announcing the school plans, education secretary Gillian Keegan said they would only be actioned if unions agreed, but with that seeming unlikely it looks like both sides are still at the same impasse.
Industrial action, particularly for those in vocational sectors such as healthcare and education, is usually a last resort and not a decision ever taken lightly.
Dismissing employees who will not work to meet minimum service levels may be legal, but it is likely to become problematic if those roles are skilled and not easily replaced and is unlikely to do much to aid recruitment.
Employers are caught between a rock and a hard place when it comes to the new legislation and may choose to try and circumvent it, for example, by asking for volunteers to work first or by giving out warnings in the first instance rather than going straight to dismissal. They will not want to be seen as a soft touch though. The law is intended to act as a deterrent and that will not be the case if employees who refuse to comply are only given a slap on the wrist.
Clarity is needed on what this legislation will look like in practice, but it is unlikely that we will only start to get that when it is invoked – and challenged – for the first time.
Currently employers, when dismissing employees, must follow the Acas Code of Practice, which broadly means they must act fairly and reasonably. A business that does not, if the matter goes to tribunal, could be made to pay an extra 25 per cent in damages. It is not clear how, if at all, the code fits with the new legislation, but failure to follow it could lead to a slew of unfair dismissal and breach of contract claims.
Employers and the government should steel themselves for a lengthy battle, however. Unions say they won’t rest until the legislation is repealed – something Labour has already vowed to do if the party gets into power at the next general election – and will be buoyed by last year’s High Court ruling that allowing employers to use agency workers during strikes was unlawful.
For now, all businesses can do is continue to act fairly and reasonably and to follow best practice. All eyes will be on the first challenge to the new law, which cannot be far away. One thing’s for sure though: no employer will want to be that test case.
Hannah Dowd is an employment solicitor at Jackson Lees