The Strikes (Minimum Service Levels) Bill: Controversial in theory, unworkable in practice

Author: Darren Newman

The Strikes (Minimum Service Levels) Bill is the Government's response to the widespread industrial action recently seen across public services, including transport, schools and the NHS. But the legislation is fraught with problems - not least because it skips over the question of what a minimum service level actually is, says consultant editor Darren Newman.

A game of parliamentary ping-pong

The Strikes (Minimum Service Levels) Bill gives ministers a regulation-making power to specify "minimum service levels" that will apply when there is a strike affecting certain key public services. Where such regulations are in place, an employer will be able to require a trade union to encourage specified workers to turn up for work on a strike day.

The Bill passed through the House of Commons with ease but is experiencing some difficulties in the House of Lords. The Lords made a number of amendments that effectively rendered the Bill pointless, removing any obligation on a trade union to comply with a work notice and giving workers who defy one better protection against dismissal than they would have had if no work notice had been issued. The Commons duly rejected those amendments but the House of Lords then made new ones that accomplish much the same thing. The Bill must now return to the Commons (this is informally known as the "ping-pong" stage), where those amendments will also presumably be rejected. I expect that at that stage the Lords will concede - ultimately the elected chamber must have its way - and the Bill will then be ready for Royal Assent.

Practical challenges ahead

The Bill is controversial because of the limitations it places on the right to strike. But it also has a number of features that make it difficult to see how it could really work in practice.

Rather surprisingly, given its title, the Bill skips over the question of what a minimum service level actually is. That is left for ministers to specify in regulations applicable to individual services, and there are no criteria in the Bill limiting ministers' discretion. One unintended consequence of that could be to make any set of minimum service level regulations open to challenge by judicial review. It will be argued, in the absence of clear criteria set out in an Act of Parliament, that ministers will have to ensure that any regulations are compliant with Article 11 of the European Convention on Human Rights, which has been held to protect the right to strike. Regulations that go beyond ensuring a bare minimum level of service necessary to protect life and property may well be struck down.

If such regulations are passed - and survive legal challenge - then the next surprise is that they will not in themselves create any legal obligations. Rather, employers covered by the regulations will have the ability to issue a "work notice" specifying - by name - those individuals that it needs in work on the day of the strike to ensure that the minimum service level is met.

That work notice must be issued within one week of the union giving the required two weeks' notice of industrial action. That is a challenging deadline. An employer will not generally be able to keep a ready-to-use work notice to hand for whenever a strike may be called. The list of names will have to depend on who is due to be in work on the day in question. In larger strikes - some of which might involve thousands of employees - pulling together the appropriate work notice within a week will be a huge challenge.

"Reasonable steps" and the difficulty of damages

Assuming the work notice is duly served, then the union must take "reasonable steps" to ensure that those individuals (if they are union members) go to work. But the Bill gives no indication of what those steps might be. At the minimum the union can perhaps be expected to email the workers to inform them that they have been identified on the work notice and tell them that they are not included in the call for strike action. Whether a union can be expected to do any more than that will have to be settled by the courts.

If the union fails to take reasonable steps - whatever they might turn out to be - then the industrial action will be unlawful. This means that, in theory, the employer could obtain an injunction preventing the action from going ahead. But in reality the union's failure will usually only become apparent when the employer sees who turns up for work on the day of the strike. By that time an injunction will not achieve much - at least not in the context of a one-day strike. If a new strike is called, then a new work notice will be given and the failure to comply with the old one will not matter.

The employer could also sue for damages - but these would be limited to the loss caused by the failure to comply with the work notice rather than the strike as a whole. In any event, it is difficult to see what financial losses would flow from strikes in the NHS or in schools if minimum service levels were not met.

A charter to sack nurses?

What about the rights of employees? The Bill has been criticised as a charter to sack nurses - but it really isn't. Even if they wanted to, public sector employers are just not in a position to dismiss large numbers of employees in areas where we already have staff shortages. In any event, employees who strike in breach of a work notice will not lose all rights to claim unfair dismissal, it is just that their dismissal will not be automatically unfair. So a tribunal will be called upon to decide whether in each particular case the employer has acted reasonably or unreasonably in deciding to dismiss. Once again, we can expect arguments based on Article 11 and the right to strike.

This Bill allows the Government to claim that it is on the side of keeping the public safe and ask the Opposition: "Which side are you on?" But once the Bill is on the statute book, the complications involved in defining the minimum levels of service - and the difficulties that employers will encounter in enforcing them - will become increasingly apparent. I suspect that the Government will ultimately have little appetite for bringing forward the regulations that will expose this Bill's limitations.