The UK is seeing record levels of strike action as transport and ambulance workers, nurses, physios, and teachers have taken industrial action. In January 2023, the government introduced the Strikes (Minimum Service Levels) Bill which seeks to give powers to government ministers to establish minimum service levels in six sectors including health, transport and education.
This explainer sets out how strikes are currently regulated in the UK, and what the new Bill would change. It explains what a ‘minimum service level’ is, and how it would work in practice. It then highlights any constraints in international law.
Is there a right to strike in the UK?
There is no right to strike under UK law.
However, under Article 11 of the European Convention on Human Rights (ECHR) – to which the UK is a signatory – 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 their interests. The case law of the European Court of Human Rights demonstrates that Article 11 can entail protection of the right to strike. This right is not absolute and can be restricted by law. Restrictions may be imposed on the right to strike of workers providing essential services to the population, but the State must justify its necessity. Violent protest is not protected.
How are strikes currently regulated in the UK?
Under UK law, industrial action, including strike action, is legal if it follows the rules laid down in the Trade Union and Labour Relations (Consolidation) Act 1992, which should be interpreted in line with Article 11 ECHR (as described above). The Act requires that for strike action to be lawful it must be taken ‘in contemplation or furtherance of a trade dispute’ between the workers and their employers.
Trade unions must also satisfy certain procedural requirements for the strike to be lawful. These include the balloting of trade union members before industrial action, and the notification of both the ballot and industrial action to employers. In 2016, the UK imposed a turnout threshold of 50% of members voting in any ballot, and for ‘important public services’ required 40% of the workforce to vote in favour of any industrial action (in addition to the simple majority of voters voting in favour).
“A minimum service level is the level of functioning that workers must guarantee during industrial action.”
If these requirements are satisfied, the 1992 Act protects trade unions from being sued by employers for certain economic ‘torts’ (i.e. legal wrongs), including inducing workers to breach their contract of employment. Employees taking industrial action can claim at least twelve weeks ‘automatic’ protection from dismissal when taking industrial action lawfully called by their trade union.
The law further protects workers who are peacefully picketing, which involves protesting, communicating or persuading workers to abstain from working at or near their workplace, subject to certain limits.
Some forms of industrial action are not protected. For example, ‘secondary’ or ‘sympathy’ strikes (i.e. workers employed by employer A striking against employer A in sympathy with a group working for employer B) are not protected under UK law. Violence, intimidation or harm to individuals or property are also not protected.
Certain workers are not permitted to take industrial action, including the police, prison officers and non-civilian officers in the army.
What is a ‘minimum service level’ in ‘essential services’?
A minimum service level is the level of functioning that workers must guarantee during industrial action. In those countries which already make provision for minimum services levels, they are generally applied to sectors which are considered to be essential services to the population. Minimum service levels can vary by sector.
Essential services in the strict sense of the term have been defined by the International Labour Organization (ILO) (see below) as:
(1) services provided by public servants exercising authority in the name of the state (such as the police or prison officers);
(2) for services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and
(3) in the event of an acute national emergency.
While countries vary in their definition of what constitutes an ‘essential service’, they are typically services such as fire and emergency services, electricity and water supply, and the police and armed forces.
“Minimum service levels can reduce the effectiveness of strikes.”
Minimum service levels can reduce the effectiveness of strikes. Workers required by law to work are unable to take part in industrial action. Where the minimum service level is not met, this can also have negative consequences on workers and trade unions, for example, by removing the legal protection they enjoy during lawful industrial action (such as protection from dismissal). This limitation on the rights of workers is justified by the public need for essential services.
What is the UK government’s new bill trying to do?
The Strikes (Minimum Service Levels) Bill was introduced in January 2023 following a period of prolonged industrial action across a number of sectors. The government had already introduced a Bill on minimum service levels, the Transport (Minimum Service Levels) Bill. The Strikes (Minimum Service Levels) Bill replaces this.
The new Bill aims to deliver on a commitment in the 2019 Conservative manifesto to ensure a minimum service operates during transport strikes, by enabling the government to regulate for minimum service levels in a range of sectors. These sectors are health services; fire and rescue services; education; transport; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security.
The Bill applies only to Great Britain (England, Scotland, and Wales).
The Bill would amend the 1992 Act to introduce a power for government ministers to set a minimum service level in listed sectors. It would enable employers to issue ‘work notices’ to require minimum service levels to be delivered in the specified sectors. It would also amend the Act to restrict the protection of trade unions from legal action, as well as remove the automatic protection of employees from unfair dismissal if the minimum services were not delivered.
“The Bill would amend the 1992 Act to introduce a power for government ministers to set a minimum service level in listed sectors.”
The minimum service level will be made by the relevant minister via ‘minimum service regulation’ (i.e. secondary legislation – rather than primary legislation which is made by Parliament). Before setting the minimum service level, the minister is required to consult ‘such persons as [s/he] considers appropriate’. There is no requirement to negotiate, let alone reach an agreement with, trade unions. The regulation setting the minimum standard would be laid before Parliament, but Parliament would not be able to amend or change the minimum service level.
How would a ‘minimum service level’ work in practice?
When a minister has set a minimum service level, an employer can then give a ‘work notice’ to a trade union taking planned strike action. This would identify workers required to work during the strike in order to reach the minimum level of service set by the minister. The notice must not list more people than are ‘reasonably necessary’ to provide the level of service.
Before giving the work notice, the employer is required to consult with the union, and have regard to its views. There is no obligation to negotiate, or to come to an agreement with the trade union.
Under the Bill, trade unions are obliged to take ‘reasonable steps’ to ensure their members comply with the work notice. If a trade union fails to do so, then protections for legal strikes fall away. This means that employers can seek damages against the trade union and can also dismiss workers who fail to comply with work notices during industrial action.
Why is the Bill controversial?
The government has said that the Bill is needed to enable employers to ‘ensure minimum service levels are delivered during strikes within relevant services’, and justified it on the basis 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’.
Trade Union representatives have argued that the Bill is flawed for three reasons.
First, they argue that the scope of sectors included in the Bill is too broad. For example, ‘health services’ and ‘transport services’ could relate to any aspect of work in either. ‘Education services’ is also not confined to those under 17 (as is the case with the 2016 Act), and could include primary, secondary or university sectors or any related work sector. The Bill does also does not state that the services must be ‘essential’, and so it is at the discretion of the minister which services in the designated sectors may be included.
“Trade Union representatives have argued that the Bill is flawed”
Second, the Bill gives the minister the power to act unilaterally to impose minimum service levels rather than requiring an agreement between workers and employers. Unions argue, therefore, that it contrasts unfavourably with the policy in the Transport (Minimum Service Levels) Bill, where employers and workers were required to negotiate an agreement on what the minimum service level should be. The Transport Bill also made provision for resolution of disputes over the minimum service level through the Central Arbitration Committee (CAC). However, there is no role for the CAC or any other dispute resolution mechanism in the new Bill.
Third, trade unions argue that the Bill obliges workers to work, and could force trade unions to penalise members who do not follow work notices. This could undermine trust between unions and their members, and serve as a ‘chilling factor’ on industrial relations.
Keith Ewing and John Hendy have also criticised the Bill as imposing disproportionate penalties against trade unions for a failure to force members to work, and argue that the Bill does not have adequate safeguards against potential abuse.
Are there International Labour Organization (ILO) constraints?
The International Labour Organization is a United Nations agency, and was established to develop labour policies and set labour standards with the input of 187 member states (including the UK as a founding member), workers and employers.
The right to strike is protected by International Labour Organization (ILO) Convention 87 (on Freedom of Association and the Right to Organise) which the UK has ratified. The ILO recognises there can be limits on strike action in essential services but emphasises that the ‘the service required must genuinely and exclusively be a minimum service’ and it must be ‘strictly necessary to meet the basic needs of the population … while maintaining the effectiveness of the pressure brought to bear’ by the strike.
“The UK Bill does not envisage negotiation with the trade unions or independent adjudication of minimum service levels.”
The ILO also emphasises the need for bilateral negotiations on the content of minimum service levels prior to the strikes ‘so that all parties can examine the matter with the necessary objectivity and detachment’. The ILO also says that ‘Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned.’ As shown above, the UK Bill does not envisage negotiation with the trade unions or independent adjudication of minimum service levels.
ILO Conventions are not legally binding in the UK (and so not enforceable in UK courts). However, as part of its post-Brexit agreement with the EU, the UK committed itself to respecting labour standards, including ‘as defined by the fundamental ILO Conventions’. There is a debate as to whether the Strikes (Minimum Service Levels) Bill could be understood as undermining that commitment.