On 20 February 2023 the government began their Consultation on the Strikes (Minimum Service Levels) Bill 2022 – 23. The Bill proposes to add a new section (section 234B) to the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992, which would allow the Secretary of State to require there to be “minimum service regulations” within six areas:
The Bill would allow employers to issue Trade Unions with “work notices” (sections 234B – 234G TULCRA) to prevent workers from striking when there is a risk that necessary service levels will not be met. These notices must identify who is required to work and specify what work they are required to undertake. Work notices must also comply with sections 234A and 234C TULCRA.
This will have considerable impact on the rights of workers to engage in industrial action (including employee protection against unfair dismissal) and will impact the respective liability of Trade Unions. Legal advisors must be conscious of the proposed changes to advise employers, trade unions and / or workers appropriately.
This area of law is complex, but generally speaking workers can engage in industrial action through Trade Unions in accordance with Part 5 of TULCRA 1992. As long as the statutory requirements are complied with then employees should be able to strike without being dismissed, and associated Trade Unions will not be liable in tort for claims brought by employers.
Currently, workers are protected under section 238A TULCRA from being dismissed for Trade Union related activities.
Employers may need to issue work notices if they identify that there is a risk that minimum service levels will not be met. Advisors will need to make it clear that businesses must consult with the relevant Trade Unions and ensure that the number of notices issued are no more than “reasonably necessary” to meet those service requirements, and they must first consult with those Trade Unions.
If Trade Unions do not take reasonable and appropriate steps to ensure that their members comply with the work notices, then they may be liable for claims brought by employers (where employers could obtain an injunction or claim damages).
If workers do not comply with the work notices and decide to engage in the industrial action anyway, then they will lose protection for automatic unfair dismissal. An Employment Tribunal would then determine whether the dismissal was fair in accordance with the usual ordinary unfair dismissal rules.