Anti-strike bill: what would it mean for transport unions, employers and employees?

Since May 2022, the UK has been embroiled in a series of labour strikes amid a backdrop of rising inflation. With 2.472m working days lost between June and December 2022 alone, some people may be forgiven for thinking that the level of the disruption is unprecedented, especially as 79 percent of strikes were by workers in transport, storage, information and communication sectors.

Transport strikes have been noticeably disruptive owing to our huge reliance on such services and have ground the UK to a halt on a number of occasions. However, these strikes are cyclical in nature, and pale in comparison to previous disruptions. For example, during 1979, around 29.474m working days were lost to industrial disputes. At this point inflation was double what it is today, but nevertheless…

Despite this, the UK government has pushed forward with the Strikes (Minimum Service Levels) Bill — known as the ‘anti-strike bill’ — which seeks to enforce transport operators to maintain a minimum level of service at all times.

What is the anti-strike bill?

Currently, under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992), a trade union which authorises a strike that impacts an employment contract will be liable in tort. This is unless it has acted in accordance with a number of requirements set out in the legislation — such as balloting staff and notifying employers — something that protects the trade union from being sued for inducing members to breach their contracts. The legislation also protects workers from dismissal for going on strike.

The new anti-strike bill would allow the Secretary of State to set minimum service levels for strikes involving ‘relevant services,’ which will include those offered by train operators. Under this, a union will give the employer — the train operator — a ‘strike notice,’ which in return will need to issue a ‘work notice’ stating which employees are required to work and what they will need to do. It will have seven days to do this and will not be able to request more workers than is ‘reasonably necessary.’

What would be the impact of the bill?

The bill would have two main effects if enacted into law:

1. The loss of union immunity

If a union doesn’t take reasonable steps to ensure compliance with the work notice by any union members identified in it, it could result in more applications for an injunction against the strikes by the employer. The employer would also be able to sue the union for damages caused by any failure to take these reasonable steps — not taking into account any loss that would’ve been caused by the strike regardless. Both of these consequences essentially put a union’s immunity in jeopardy.

2. The loss of worker rights

Workers can still go on strike if a strike notice is issued in their name, and won’t be in breach of this seeing as it’s a notice from the union, not them. However, if an employee is named in a work notice and still goes on strike, they will lose their unfair dismissal protection under the new bill and can essentially be fired for a breach of contract. This is because the work notice requires them to work despite the strikes.

Will the bill work?

The anti-strike bill will require both parties to work closely together, however, with each side set in their respective positions, it’s difficult to see if this will transpire. The bill could also be subject to significant legal action considering its potential impact on an individual’s right to an unfair dismissal claim, as well as watering down trade union strikes. Most unions will argue that the disruption caused by strikes is kind of the point, because it emphasises how important such workers are.

At the time of writing, the anti-strike bill is set to be debated in the House of Commons in mid-May after going through a series of amendments in the House of the Lords. Only when these processes have been completed will we see the true nature of the legislation and what it entails for unions, employers and employees alike.

Samantha Greer is a senior consultant commercial solicitor at Setfords Solicitors
setfords.co.uk/