What did the trade unions ever do for us? The two-day weekend! Minimum wage! Sick pay! Train cancellations? Delayed post? Fewer nurses on shift?

Collective action has been pivotal in securing rights and improved the living standards of the UK’s workers. Strikes are an essential means of achieving this progress. They work for the very reason that makes them so inconvenient – they are designed, in part, to show how much harder life would be without the people on strike doing their jobs.

The last six months have been marked by industrial action, notably in the public sector and in the rail industry, where pay negotiations have reportedly been stymied by ministers.[1]  Public sector pay has stagnated, the cost of living has risen dramatically and employers are looking to reform their workforces. It is therefore no surprise that when negotiations fail, workers are voting to strike. What does surprise is that the government appears to be moving to curtail the effectiveness of industrial action in response.

Following Boris Johnson’s decriminalisation of supplying agency staff to employers whose workforce is on strike in July 2022,[2] Rishi Sunak’s government introduced the Strikes (Minimum Service Levels) Bill on 10 January 2023.

The bill seeks to impose a basic level of provision in health, fire, education, transport, nuclear and border security services during industrial action, at levels set by the Secretary of State for Business, Energy and Industrial Strategy.[3]

The stated aim appears to be “ensuring key transport, travel and trade routes don’t completely shut down on strike days”.[4]  The Department for Business, Energy and Industrial Strategy has labelled the bill as a form of minimum or essential service legislation.[5]

The International Labour Organisation, which BEIS has invoked in their press release about the bill, recognises that strike action could be constrained or prohibited in two scenarios:[6]

  1. For essential services, which are defined as services whose interruption would endanger the life, personal safety or health of the whole or part of the population; or
  2. The extent and duration of a strike in a non-essential service endangers the life, personal safety or health of the whole or part of the population.

The bill is problematic by reference to this definition, which would weaken any arguments that it amounts to a proportionate interference with the Article 11 right to freedom of association.

  1. The threshold for an essential service is high. For example, ILO’s Committee for Freedom of Association does not recognise transport as an essential service.[7] If a total, open-ended strike on the railways persisted, it is not obvious how the life, personal safety or health could be endangered, given that the principal inconvenience is to passengers. No such limitless action has taken place in this season of disputes. It is similarly difficult to see how teachers or other education workers might be fall into this definition.
  2. It is unclear that the recent strikes by nurses and paramedics led to an interruption of service that was responsible for endangering part of the population. In December 2022, NHS trusts were regularly reporting critical incidents on non-strike days.[8] By way of comparison, when junior doctors withdrew all emergency care during their 2016 strikes, hospitals reported coping well.[9] By the same token, it is difficult
  3. Medical professionals are bound by their own professional ethical duties to their patients, and their unions have guidelines in place around what kind of care to provide, albeit these do not absolutely prohibit withdrawing all care.[10]

As is apparent from measuring the bill against the ILO’s conditions, the bill appears to be an extraordinarily blunt tool which, in its current state, would deprive millions of employees of the possibility of withdrawing their labour, across various sectors that do not meet the threshold of an essential service and at a time when no union has intimated striking indefinitely, let alone begun to do so.  

It is possible that the bill is intended as an aggressive gambit in the government’s ongoing negotiations with NHS, border force and rail workers. However, if it were to become law, it would not be surprising to see legal challenges in response, given that UNISON, NASUWT and the TUC have already separately brought judicial review proceedings against last summer’s changes in respect of agency worker use during strikes.[11]

Article by Alice Beech, Employment Barrister

[1] https://www.ft.com/content/f181e88b-777e-4285-902c-55f925213fd8

[2] https://www.legislation.gov.uk/uksi/2022/852/contents/made

[3] Part 1 of the Bill

[4] https://www.gov.uk/government/news/government-invites-unions-to-return-to-the-table-and-call-off-strikes

[5] Ibid

[6] [6] As set out in the summary at §33 of the European Court of Human Rights’ decision in Veniamin Tymoshenko and Others v. Ukraine (https://hudoc.echr.coe.int/eng?i=001-146671)

[7] Ibid

[8] See, by way of example, https://www.itv.com/news/2022-12-30/nhs-critical-incidents-what-is-the-official-advice-over-the-new-year

[9] https://www.theguardian.com/society/2016/apr/26/80-percent-junior-doctors-took-part-in-all-out-strike

[10] https://www.rcn.org.uk/magazines/Action/2022/Jul/Striking-a-balance-patient-safety-during-industrial-action

[11] https://www.unison.org.uk/news/2022/12/court-permits-unison-challenge-on-law-allowing-strike-breaking/