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Anti-strike laws: an update

London, UK - August 30, 2016 - Business people walking in motion in Canary Wharf

Strike action has historically been a key tool of negotiation used by unions to push for improved employment terms for public sector workers.

However, the recent Strikes (Minimum Service Levels) Bill, also known as the ‘anti-strike’ bill, has been subjected to strong criticism as it seeks to limit the ability of unions to organise strike actions, and for union workers to participate in them.

The current law regarding lawful industrial action requires that there must be a trade dispute, a properly conducted industrial action ballot and a written notice of industrial action being sent to the employer. Currently, trade unions can organise lawful industrial action with statutory immunity, which means the unions and their members cannot be sued for striking.

The anti-strike bill was introduced to Parliament by Energy Security Secretary Grant Shapps to enforce minimum service levels during strike action across six sectors including the NHS, transport services, education services and fire services. If the new bill is passed in its current form, employers may be able to sue unions if these minimum levels are not met. The bill also includes provisions that employers could legally be permitted to dismiss employees who ignore a ‘work notice’ ordering them to work on strike days. 

Grant Shapps argues that the purpose of the bill is to ‘protect the public’s access to essential public services’ and ‘protect the lives and livelihoods of the British people’, by enabling key public services to function during strike action.

Discrimination and human rights concerns

There is concern that the anti-strike bill infringes the UK’s obligations under human rights law. The Joint Committee on Human Rights has stated that the anti-strike bill does not align with the requirements under article 11 of the European Convention on Human Rights (ECHR), which allows freedom of association for workers. The Committee asserts that there should be less harsh measures introduced for managing striking workers, such as loss of pay or suspension for employees who do not comply with their work notice.

Feminist campaign organisations such as Pregnant Then Screwed and the Equality Trust have voiced further concerns that the anti-strike bill impacts females disproportionately because the sectors that are going to have minimum service levels enforced have a majority female workforce. Therefore, this bill will disproportionately infringe on the ability of female workers to strike.

Recent law

This bill appears to be a progression of recent laws introduced by the government to assist businesses affected by strikes and scrutinise unions. In July 2022, amendments were made to section 22 of the Trade Union and Labour Relations (Consolidation) Act 1992, increasing the maximum damages the courts can award against unions for unlawful strike action. The previous maximum damages that could be awarded was £250,000, the maximum damages that can now be awarded has been increased to £1,000,000.

The government also introduced The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, that allows businesses affected by strikes to use temporary agency workers to replace their staff during the industrial action period. As a result of this law, affected employers are also able to ask non-union employees to carry out the work of the striking employees during the industrial action if it is permitted by their employment contracts.

The bill is currently being reviewed by the House of Lords.

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Divinea Lyman, paralegal in our Employment team, contributed to this article.

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