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Legislation which came into force today has essentially banned strike action by ambulance staff and those working on border enforcement, according to a new briefing.
Ahead of the TUC’s Special Congress this Saturday, the Institute of Employment Rights (IER), alongside the Campaign for Trade Union Freedom (CTUF), Professor Keith Ewing and Lord John Hendy KC have analysed the worrying implications of the new anti-strikes Minimum Service Levels legislation.
Professor Ewing and Lord Hendy, President and Chair of the IER respectively, are long-standing and well-respected experts in the field of employment rights and labour law and have written extensively on the new anti-trade union legislation.
When workers now vote to strike in the health, education, fire, transport, border security and nuclear decommissioning sectors, they could be forced to attend work by order of a ‘work notice’ – and potentially be sacked if they don’t comply. The legislation allows for unions who do not comply to be sued, up to a maximum of £1 million.
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Hardest hit so far are ambulance and border force staff. The briefing states that in health, the minimum service level demands that emergency calls are answered , ‘triaged’, and responded to “in respect of conditions which are life-threatening or require clinical assistance at the scene or transport to a healthcare facility” – at a level they “would be if the strike were not taking place on that day”.
The authors note: “It is not possible to read this as anything other than requiring normal service on strike days. Hence these ambulance and patient-transport workers are effectively banned from taking strike action.”
And in border security (which includes passport services), the examination of people and goods coming in or going out of the UK, the patrol of ports and coastal waters, as well as the collection and dissemination of intelligence, are required on a strike day to be “no less effective than they would be if the strike were not taking place on that day”.
“Again, this can only be seen as a virtually total ban on these workers’ right to strike,” the IER report states.
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The government estimates that only 70-75% of Border Force would be required to provide this service, although the figure is higher for smaller ports and airports where staffing levels are lower. “Depriving 70% of the workforce of the right to strike appears to be serious enough to us,” the authors write.
The minimum service levels both for passenger rail services demands “the equivalent of 40% of the timetabled services during the strike” should be able to run.
“The effect will be that those required to work the 40% service will lose their right to strike,” according to the IER. The total staffing numbers are “likely to be well in excess of 40% of normal staffing” due to the need for additional staff to cope with the danger of overcrowding on platforms under a reduced service, and “because it will often be the case that the complement of staff required for a 40% service may, in any event, not be much short of that required for a 100% service.”
For those in ‘infrastructure’ rail roles, such as signalling, “staff on the relevant routes can only strike after ten o’clock at night and before six the next day.”
Strike-hit employers are not obliged to serve a work notice (outlining which staff must come to work during a strike).
Many unions are seeking agreement with employers that they will not do so, something the Scottish government has committed to.
However, these public bodies potentially face being pursued in the courts by service users who demand that minimum service levels set out in law are met,
The legislation only applies to strikes, not ‘action short of a strike’ – such as overtime-bans.
This means unions may choose to engage in disruptive ‘action short of a strike’, which could be more disruptive in the long run than one or two day strikes.
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The government’s own Impact Assessment on the new law points out that ‘the issuing of work notices would be challenging and time-consuming’ due to the need for consultation with unions. Union officials are not immune from work orders, meaning reps will be forced to cross the very picket lines they organised.
And individual employees named in a work notice must – unless sick or on leave – work during the strike. If they do not work, the Act removes their automatic protection from unfair dismissal. In other words, they can be summarily fired.
The briefing continues: “From the union’s perspective, once served with a work notice the Act requires it ‘to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.’ This is a heavy administrative burden, which is potentially incapable of fulfilment…
“The union will receive a list of na