Strikes (Minimum Service Levels) Bill: implications for the education sector
Three months ago the government introduced the Transport Strikes (Minimum Service Levels) Bill to try and reduce the disruption caused by ongoing rail strikes. Since then we've seen waves of strikes across a number of sectors. Nurses, ambulance crew, driving instructors, bus drivers, teachers, and many other workers have gone on strike to try and obtain pay increases and better working conditions. In the context of education, staff at the DfE and Ofsted have also announced they will hold a one-day strike too.
There's no end in sight for most of the disputes. But instead of grappling with the underlying issues, the government has decided to impose restrictions on the right to strike.
It's dropped the Transport Strikes Bill and replaced it with the Strikes (Minimum Service Levels) Bill which received its first reading today. The new Bill goes much further than the earlier version and applies to health, fire and rescue, education, nuclear installations and the treatment of radioactive waste, border security as well as transport. None of these sectors are defined in the Bill.
What will the Bill do?
If it becomes law, the Bill will amend the Trade Union and Labour Relations (Consolidation) Act 1992 and enable the government to introduce regulations to impose minimum levels of service in the event of a strike.
The union will still have to meet the relevant ballot thresholds and serve notice on an employer that its members intend to strike. Once the employer has received this information, it will be able to give a 'work notice' to the union that it must comply with its minimum service level agreement which will either have been determined by the government or agreed between the parties. Before serving notice the employer must consult with the union about the number of people needed and the type of work they will be doing. But there's no need to reach agreement.
The notice itself must identify the people required to work during the strike (by name) and the nature of the work they are required to do.
How many employees will be asked to work during strike action?
The government has indicated that it will set minimum service levels in respect of the fire, ambulance and rail sectors. But it expects the education and other sectors to reach 'sensible and voluntary' agreements with unions to deliver a reasonable level of service during strike action. If that doesn't happen, the government could step in and impose minimum service levels.
The difficulty for the education sector is that the Bill doesn't set out or even provide any guiding principles to explain how that minimum level of service will be determined. That will be left to separate regulations which haven't been published yet.
How will employees know if they are required to work during a strike?
Once the employer has served a 'work notice' on the union, responsibly passes to the union to notify those members of staff who are required to work and take 'reasonable steps' to ensure that they comply.
What's a reasonable step in this context?
That's not defined in the Bill. Nor do the explanatory notes offer any guidance. However, the government previously indicated that guidance would be made available to help unions decide what they have to do to stay on the right side of the law and that it might include unions advising staff that the strike is subject to minimum service requirements and explaining what this means.
What happens if the union doesn't comply with this and/or a named employee refused to come into work?
If the union doesn't take reasonable steps to prevent employees named in the work notice to continue to work on strike days, it will lose its immunity from tort proceedings under s219 TULRCA 1992 and could be sued for damages.
An employee who goes on strike in breach of the work notice will not be automatically protected against unfair dismissal. Schools/colleges that dismiss staff for this reason will still have to follow a fair procedure.
Could schools and colleges issue a warning instead?
Schools and colleges will have to decide how to deal with those members of staff who refuse to come into work during a strike who have been named in the work notice. This could include warning them before deciding to dismiss. But, the approach you take is likely to depend upon how many staff are involved. If it's just one or two, you might want to make a point to try and dissuade others from following suit. But if all staff ignore the notice, can you dismiss them all without impacting on the quality of education your pupils/students expect?
There's already a skills shortage in this sector and you will find it even more difficult to attract and recruit staff if you take draconian measures against striking staff.
Doesn't this interfere with the right freedom of assembly and association contained in the Human Rights Act?
Potentially, yes. Article 11 provides that 'everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests'. The European Court of Human Rights has made it clear that this includes strike action.
However, this right is qualified which means that it's possible for the government to justify restricting it. The Bill includes a declaration that it complies with convention rights - something that likely to be tested by unions if the Bill becomes law.
When will this come into force?
The government estimates that it will take around six months for the legislation to be passed. It won't therefore have any immediate impact on the current round of strikes.
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The head of the Trades Union Congress, Paul Nowak, said that if it became law the legislation would "prolong disputes and poison industrial relations - leading to more frequent strikes".
"This legislation would mean that when workers democratically vote to strike, they can be forced to work and sacked if they don't comply," he said.
"That's undemocratic, unworkable, and almost certainly illegal."”