As the country grapples with one of the worst cost of living crises it has ever dealt with, workers in a wide variety of industries, from barristers to postal workers, have taken industrial action over pay and working conditions, with strike action from border force staff, university staff, teachers, NHS nurses, emergency call handlers and ambulance staff. Perhaps though the industry with the most strikes has been the transport industry. There have been a series of rail strikes over the past year, with three further strikes scheduled for 5, 7 and 9 November. 

In response to the rail strikes, the government has announced its new Transport Strikes (Minimum Service Levels) Bill.  The Bill aims to require that a minimum level of transport services is maintained while industrial action is taking place. It does this by providing that trade unions will lose their immunity from liability if they fail to ensure that the staff needed to provide this minimum service level do not participate in strike action.

Lawful industrial action in the UK 

Article 11 of the European Convention on Human Rights (which is replicated in UK law in Schedule 1 of the Human Rights Act 1998) states that: 

"Everyone has a right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests." 

In the UK, the "right to strike" is not absolute and can be restricted where prescribed by law. This is why many consider it a privilege as opposed to a right.   

An employee striking will be in breach of their employment contract and any trade union organising the strike will usually be considered to be inducing that breach of contract. However, trade unions are protected from liability if they follow the rules laid down in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Trade unions and, the employees, are given protection in that the employers cannot bring a claim against them for breach of contract or inducement to breach the contract if the below requirements, as set out in Part 5 of TULRCA, are met.

• The strike action is taken in contemplation or furtherance of a trade dispute.
• The action is not being taken for one of a number of expressly prohibited reasons.
• The action does not involve unlawful picketing.
• The action has the support of a properly organised ballot of union members and the notification requirements have been complied with. 

Where these requirements are met, employees in the UK are also protected from dismissal and can bring a claim in an employment tribunal for automatic unfair dismissal, if they are dismissed for taking industrial action at any time within the first 12 weeks of the action or, after 12 weeks, where the employer has not reasonably attempted to use a procedure for settling the dispute. 

Transport Strikes (Minimum Service Levels) Bill 

The Bill would require specified transport services and their unions to establish minimum service levels that must continue to be provided even during strike action. The list of specified transport services is not confirmed and will be set out in future regulations. The minimum service level is to be determined through discussions between the employers and trade unions, taking into account various factors specified in the Bill such as passengers' ability to travel and the impact on the economy. If the employers and unions cannot agree, they may refer the matter to the Central Arbitration Committee (CAC) which can impose a minimum service determination. Such a determination is binding on all parties.

Once a minimum service level is set, the unions must take reasonable action to ensure that the staff necessary to provide the minimum service do not participate in the strike. Before strike action, the employer may issue a 'work notice' specifying the employees required to work during strike action and the work required to be carried out in order to meet that minimum service level. If those specified in the work notice take strike action and the union failed to take reasonable steps to prevent this, the union would lose immunity and the employees would lose their protection from automatic unfair dismissal. 

According to the government the Bill has been proposed "to keep Britain moving, allow businesses continuity of some services and allow passengers to still go to work, school and medical appointments". Government sources estimate that the first wave of rail strikes in June this year cost the UK economy nearly £100 million. Perhaps it is no surprise that many unions are opposing the introduction of the new Bill, with the RMT rail union calling it "anti-union" and "draconian", as it could be argued to further restrict the impact of strike action.  

The Bill would have effect in England, Wales and Scotland. 

Effect of the Bill

If the Bill becomes law, it will add new requirements for employers and employees and in particular for unions seeking to organise strike action in the transport industry. Whilst the Bill does not directly restrict the ability to strike, it arguably would restrict the effect of striking. It also marks a further shifting of the balance on striking following the recent change allowing employers to bring in agency workers during strikes.

The Bill could reduce the negative impacts felt by the economy and the public, however, commentators are suggesting it would increase the administrative burden on transport service businesses that will need to consult on and agree the minimum service levels.  Even if unions take reasonable steps to ensure relevant members do not participate in strikes, it may still be very difficult to run transport services. 
There may also be financial penalties for both the employer and the trade unions as a result of the Bill. Part 6 of the Bill sets out the enforcement procedure against a party that does not comply with the requirements and allows the CAC to make a declaration that a party has contravened a requirement brought in under the Bill. Following such a declaration, an 'interested party' may apply to the Employment Appeal Tribunal, within three months of the declaration, for a penalty to be issued. 
Looking to the future, it has not yet been officially confirmed whether the new Prime Minister will support the Bill and therefore uncertainty remains. Furthermore, whilst this Bill only relates to specified transport services, a question must be asked as to whether this approach may be extended to other services in the future. 
If you would like to discuss issues mentioned in this article, please contact a member of our team. You can also sign up for our upcoming seminar on industrial action being held on Thursday 3 November 2022, here.