How would businesses be impacted by the proposed anti-strike laws?

In this guest article, Amanda Glover, Senior Solicitor for Clarkslegal explores the potential impact of the government’s proposed anti-strike laws on UK businesses.

On January 5^th 2023, the Government announced that it would soon be implementing new legislation which mandates ‘minimum service levels’ which must be met by certain sectors during strike action, including the health, education, nuclear commissioning, fire, ambulance and rail sectors.

The proposed new legislation is supposedly being brought in to ensure there is a minimum safety level of individuals who continue to work during strike action and to ensure there is not a complete shutdown of important public services. In the health sector, for example, this would likely involve an assessment of the number and type of workers needed in order for a safe level of service to be maintained for the public.

The Government has not yet been entirely clear on the detail of the legislation. However, the Government had already announced a plan for similar legislation in the House of Commons back in October 2022 in respect of the transport sector only: The Transport Strikes (Minimum Service Levels) Bill. If the recently announced anti-strike laws follow the same formula, then we can expect to see the legislation mandating the following:

• The need for employers and unions to come to an agreement on a minimum service level during any period of strike action in their sector. Parties who fail to agree could apply to the Central Arbitration Committee which would likely be given new powers to impose a minimum service determination.
• The removal of protection against unfair dismissal from any workers specified in the agreement who strike during that period.
• Employers being able to obtain a court order preventing the union from calling its members out on strike where the union has failed to take reasonable steps to ensure the specified workers, who were required to work, do not strike.
• A strike could potentially be unlawful if a union does not take reasonable steps to prevent specified staff from striking.

What will the impact be for HR and employers?

If the newly proposed legislation looks anything like the proposed Transport Strikes Bill, then it will not restrict trade unions from calling for industrial action short of a strike, which is often a much more nuanced action and therefore more difficult for an employer to recognise and handle. It may be that employers would see an entirely new form of disruption.

Indeed Mick Lynch, General Secretary of the RMT, has already threatened action such as work-to-rule if these newly proposed anti-strike laws come into force. Essentially, the unions will likely find ways around the legislation which could actually end up being more disruptive and the legislation could make disputes more toxic.

These new proposals are being brought in as a reaction to strikes that have been effective in the sense that they have caused and are causing major disruption across the UK. Superficially, the suggested laws have some appeal to employers if they are likely to mitigate that disruption and they can have appeal to those who want to neutralise and minimise the strike threats generally.

On the downside, however, they are going to be extremely difficult to administer because employers and unions will have to agree on which workers are needed to keep the services going. The legislation would likely be complicated and would impose additional compliance obligations not only on the trade unions but also on employers. Disputes may therefore span a much greater period than they currently do, taking up even more (already scarce) management time.

The proposals show there is little recognition of some of the legitimate grievances driving these strikes and that clearly a number of these strikes have widespread support and solidarity within the workplaces in which the action is being taken. This proposed legislation does not go to the core of those grievances.

If the bluff is called on the legislation and workers do not adhere and employers end up dismissing workers as a result, the problem is simply exacerbated because in many public services, there are not enough replacements available. Employers may be looking at six months to a year to find replacements. Essentially the legislation takes no account of the realities of talent attraction, engagement and retention.

If you take the NHS as an example, the NHS has a huge number of vacancies and is severely struggling to recruit. Using this legislation to simply suppress strikes whilst ignoring the underlying concerns may result in employers winning the battle in terms of strike disruption, but ultimately the employer loses the war because it is near impossible to attract workers to jobs and to hold them in jobs that do not offer a decent standard of living.

It is, of course, important to note that the new laws are currently only intended to apply to specified public services and so would not impact the high levels of industrial action we are seeing take place across other sectors of the UK economy.

Finally, despite the government’s wish for these proposals to become binding law very soon, the reality is that the unions have threatened legal action in respect of them, the proposals are likely to face significant opposition in the House of Lords and the Labour party have confirmed they would repeal them. So, it is unlikely employers will be seeing imminent change.