UK legislates for minimum service levels during strike action

The Strikes (Minimum Service Levels) Bill (12-page / 184KB PDF) was introduced into the UK parliament earlier this week. The Bill is, in essence, draft framework legislation – it makes provision for minimum service levels to be stipulated for health services, fire and rescue services, education services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security, but the detail of the minimum service levels themselves would be outlined in further regulations.

The government has said it is introducing the legislation “to ensure that striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”.

However, the Trades Union Congress (TUC) has described the Bill as an “attack” on the right to strike. TUC general secretary Paul Nowak said the proposals were “undemocratic, unworkable, and almost certainly illegal” and added that, if they were introduced, it “would mean that when workers democratically vote to strike, they can be forced to work and sacked if they don’t comply”.

The right to strike is enshrined in the European Convention on Human Rights (ECHR). The ECHR is codified in the UK by the Human Rights Act. However, employment law expert Stuart Neilson of Pinsent Masons said the right to strike is a qualified one.

Article 11 of the ECHR provides for 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 their interests. The article, however, provides that restrictions can be placed on the exercise of those rights where the restrictions are prescribed by law and are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

Neilson said: “On the face of it, there is scope under the ECHR for the UK government to impose minimum service levels during strike action. The real question centres on when any minimum service levels imposed would stray beyond those that are ‘necessary’ to address their purpose – which must align with one of the exemptions provided for in Article 11.”

Neilson said that minimum service levels would look like in practice across the six service sectors in scope of the draft legislation is not clarified in the Bill. That detail is only likely to follow when the subsequent regulations the Bill provides for are published. However, he said that the nature of minimum service level requirements could differ significantly across each of the service sectors.

“Arguably, the imposition of minimum service levels in the context of the emergency services – fire and ambulance services, for example – will be relatively straightforward for the government to justify in law on health and safety grounds. The protection of health is unlikely to be a core factor in some of the other in-scope service sectors – though it is a factor that could be weighed in the context of teaching provision for vulnerable children – so the government is likely to look to other justifications for imposing minimum service levels in those areas.”

“For example, the protection of the rights and freedoms of others, provided for in Article 11, could be interpreted by the government as enabling them to impose minimum service levels on rail workers to facilitate others’ rights and freedoms to travel to places of work or leisure, or to hospital. The key question in that scenario would be how far minimum service levels go – whether, for instance, trains that normally run between two destinations, say, four times a day should continue to be operated twice a day during strike action – and whether those requirements go beyond what is ‘necessary’ for facilitating the exercise of others’ rights and freedoms,” he said.

Neilson said that the Bill could also raise constitutional issues. In Scotland, for example, powers in the context of health, education and transport are devolved to the Scottish parliament.

“There is a very real prospect of disagreement between the UK government and Scottish government over the implementation of the Bill in Scotland,” said Neilson. “Even if the Bill takes effect in Scotland, how it is enforced will fall to employers – and in Scotland, it is the Scottish government that ultimately operates the NHS, public education, and rail services.”

In introducing the Bill, the UK government has cited that the principle of minimum service requirements during strike action is recognised “in many countries around the world”. Spain and Italy are specific examples it has referred to.

Madrid-based Beatriz Moriones of Pinsent Masons said that the legal position around minimum service levels during strike action in Spain is quite complicated.

According to Moriones, the Spanish constitution recognises the right to strike but also regulates the exercise of this right to ensure certain ‘essential’ services continue to operate. She said the Supreme Court in Spain has considered transport, health, radio, television and radio broadcasting, education, parliamentary activity, public administration, administration of justice and local councils to be among the services considered ‘essential’.

However, Moriones said that, to-date, no legislation has been approved that further specifies how the minimum service levels apply, so this matter has so far been governed by legislation that pre-dates the approval of the Spanish constitution and the subsequent case law. This, she said, has led to disputes and compromised the right to strike of workers assigned to provide minimum services, as it is compulsory for workers designated by the employer to provide such minimum services.

Moriones said: “In order to avoid this and to protect essential services as well as the fundamental rights of employees, the legislator has several alternatives at its disposal, ranging from the outright prohibition of recourse to strike action, with the imposition of other methods of conflict resolution that guarantee impartiality and equal treatment of the parties to the conflict – essentially through compulsory arbitration, to the requirement that the strike can only be partial or limited in time.”

Strike action is due to take place in France on 19 January in protest against pension reform and is expected to lead to disruption to public transport, national education and public healthcare services. Paris-based Anne Cardon of Pinsent Masons said trade union threats to disrupt such services until the government drops its reform plans has reopened the debate on whether existing powers in French law to impose minimum service requirements for such public services should be used.

Cardon said: “In the case of public sector bodies, or businesses carrying out a public service, the right to strike in France can be tempered with minimum service requirements and requisitions. However, these restrictions are very limited in law and even more rarely put in motion. This is because they are perceived as an unconscionable infringement of the right to strike.”

“To date, only the military and police forces have been denied the right to strike and only three public services have been subject to minimum service laws: public broadcasting, aviation safety and navigation and elementary schools,” she said.

“In other public services, such as hospitals, establishments where nuclear materials are held, and national meteorology, minimum service requirements are based on case law. In the case of public hospitals, for example, in the event of a strike, a service at least equal to that delivered on Sundays and public holidays must be provided. To achieve this, hospital directors will initially assign individuals work duties via letter, but if necessary, staff can also be ‘requisitioned’ – with sanctions possible for those that do not attend,” Cardon said.

“In the transport sector, French law simply requires employees to declare 48 hours beforehand whether they intend to strike or not. This allows the transportation companies to prepare a transport plan and to warn the users 24 hours before the strike. However, no requisitions are allowed, and no minimum service is imposed,” Cardon said.

“During a large strike movement in 2019, almost all public transportation was stopped in Paris for more than a month. The question of whether the government could have tried to make requisitions – i.e. force striking employees to return to work – was raised several times. Legally, however, the government would have been required to demonstrate that the strike was causing a grave and imminent danger to the public order or to the national security,” she said.

In Ireland, there is no similar legislation to that proposed in the UK. However, Dublin-based Deirdre Lynch of Pinsent Masons said that a code of practice regulates what service provision should be provided during industrial disputes in some sectors.

“In Ireland, a code of practice on dispute procedures was introduced in 1992. It provides guidance in relation to contingency planning and minimum service levels in industrial disputes in organisations providing essential services – such as health, fire, ambulance and rescue services.”

Editor’s Note, 18/01/2023: This article has been updated to include comments from Anne Cardon in respect of the legal position concerning minimum service levels in France.