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Strikes by Ambulance and Border Force Staff now ‘Effectively Banned’ After Minimum Service Levels Pass By Government Diktat

When workers now vote to strike in key sectors, they could be forced to attend work by order of a ‘work notice’

Ambulances wait to unload patients at the A&E department at Glasgow Royal Infirmary – not during a strike. Photo: Iain Masterton/Alamy

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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 names of the workers who are required to work, a list which will include both members and non-members, as well as workers who are members of other unions. In the case of a big strike the list may include thousands of workers. Sifting these lists for members will be a formidable administrative task to be performed in a very short time.”

There is also new guidance on picketing with major ramifications for union freedoms. “In a national rail strike involving tens of thousands of workers and hundreds of picket lines, a single picket supervisor who can be shown to have failed to use reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified on the work notice not to cross the picket line may cause the membership nationally to be deprived of the right to strike.”

Failure to take the reasonable steps outlined in the Code of Practice to ensure that its members comply with a work notice means the whole strike becomes unlawful. In other words, one picketer could collapse a national dispute. 

Union may be sued for an injunction to stop the strike and damages (up to £1,000,000 for the biggest unions) for any ensuing loss if the strike is deemed unlawful. 

“Failure to comply with an injunction may result in proceedings by the employer for contempt of court with sanctions including fines (and theoretically, imprisonment) and, ultimately, sequestration (seizure) of the union’s assets.

“And if the strike becomes unlawful because the union fails to take these reasonable steps, all strikers (not just those specified in a work notice) will then cease to have automatic unfair-dismissal protection,” the briefing adds.

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The authors conclude: “Never before have our unions been obliged to act as enforcers on behalf of employers and the State, as is now required by the Strikes (Minimum Service Levels) Act 2023…

“[Unions will] be considering other ways of exerting industrial pressure, for example by taking forms of industrial action other than strikes. Industrial action is unlikely to decline, but its form may radically change as a result of this Act.”

Commenting on the new rail strike limits, transport minister Lord Davies told the Lords this week:  “Tackling strikes in transport was a 2019 manifesto commitment. As we are seeing now, when the rail trade unions choose to strike, people, including doctors, nurses and teachers, experience disruption in accessing their places of work, schools and vital medical appointments. In some cases, they are unable to travel at all.” 

Kevin Hollinrake, Minister for Enterprise, Markets, and Small Business, added in the new Code of Conduct: “The Government is focused on making the hard but necessary long-term decisions to deliver the change that the country needs to put the UK on the right path for the future. That is why earlier this year, Parliament passed the Strikes (Minimum Service Levels) Act 2023. The Act seeks to balance the ability of workers to strike with the rights and freedoms of the public to go about their daily lives, including getting to work and accessing key services.”

It is rare for the TUC to convene the whole trade union movement for a special Congress outside of the TUC’s annual Congress event, which takes place in September. 

A special Congress last took place over 40 years ago in 1982, to fight Margaret Thatcher’s anti-union legislation. The TUC have talked about the fact that these are exceptional circumstances given the “unprecedented attack on the right to strike”.  

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