In addition to criticism from the UK’s regulatory watchdog (LELR 811), the Strikes (Minimum Service Levels) Bill published by the government earlier this year (LELR 804) has now come under heavy fire from both the parliamentary Joint Committee on Human Rights and the Equality and Human Rights Commission (ECHR).
In broad terms, the Bill impinges on the ability of trade unions to organise and take effective strike action in a range of sectors that have been widely defined and are called “relevant services”. It will provide a mechanism for employers to serve “work notices” on trade unions organising industrial action in these relevant services where the government will set minimum service levels through separate regulations. If a union does not take “all reasonable steps” to ensure that its members identified in the work notice attend work, it will lose its immunity in respect of the industrial action it has organised, and the non-complying workers will lose their protection from dismissal.
The Joint Committee has said in its report that it has strong reservations as to whether the bill is compliant with Article 11 of the European Convention on Human Rights (the right to freedom of assembly and association). In particular, it expressed concerns about the wide powers the Secretary of State is given in determining what the minimum service should be and what the obligation on a trade union to take “reasonable steps” to ensure its members comply with a works notice actually requires it to do. It also criticised the penalties that trade unions could face for involvement in an illegal strike - as much as £1,000,000.
Given the potential for minimum service requirements to impact more severely on certain protected groups (most obviously nurses, the majority of whom are women), the committee also raised concerns that they could result in a breach of Article 14 (the prohibition of discrimination) of the convention.
The ECHR has been equally scathing of the government’s proposals echoing many of the points made by the Joint Committee. It makes five separate points, setting out concerns over potential infringements of Articles 4 (prohibition of slavery and forced labour), 11 and 14 of the European Convention.
Neil Todd, partner and trade union law specialist at Thompsons Solicitors, is not surprised by the concerns expressed by the Joint Committee and the EHRC, adding that:
“These reports underline what we have been saying since the bill was first published.
“As well as being an ideologically driven attack on trade unions, it represents yet more bad law making from a party that has turned this into ‘business as usual’ since 2010. Here, the secretary of state has wide-ranging powers to unilaterally impose minimum service levels in a range of broad areas, without appropriate scrutiny.
“If the government doesn’t now sit up and listen and ditch these proposals, it speaks volumes for the contempt they have for democracy, human rights and working people.”
To read the report from the Joint Committee in full, click here.
To read the report from the EHRC, click here.