The minimum service levels bill is a shameful attack on the right to strike

When Grant Shapps presented the Tories’ new legislation to parliament restricting the right to strike, I told him it was part of an “alarming authoritarian drift”. The Secretary of State feigned outrage at the allegation. But the Tories’ new strikes bill is a shameful attack on the democratic right to strike – and part of a worrying pattern. 

This restriction on the right to strike comes after the crass attack on the democratic right to vote through the introduction of voter ID – a blatant attempt at voter suppression copied straight from the US Republican playbook. And, of course, there has already been an attack on the democratic right to peaceful protest. 

It’s clear that, faced with mounting unpopularity, the government is curtailing some of the basic freedoms that we have in a democratic society to oppose its decisions: at the ballot box, through peaceful protest and through strike action. This should alarm us all. 

Until you have read the new so-called strikes (minimum service levels) bill – a very short piece of legislation that leaves huge amounts of powers in the hands of the Business Secretary – it is hard to envisage just how restrictive it could be on the ability of workers to take industrial action. The bill restricts the rights of both individual workers and of the collective trade union movement. It explicitly states that the aim is “to restrict the protection… to trade unions and employees in respect of strikes” in those areas where the government has imposed minimum service levels.  

Under this new law, the Secretary of State is given the immense power to impose the ‘minimum service’ that must be delivered during strikes across six different sectors, specifically transport, health, fire and rescue, education, nuclear and border security. These are very broad categories, and no one would be surprised if the Tories chose to cast the net very widely in order to incorporate, and restrict, a very large number of strikes.  

While the Tories have been keen to emphasise that strikes will still be allowed, the legislation doesn’t specify the minimum service level that has to be provided on any strike day. There is nothing to stop the government from effectively rendering strikes futile by specifying a very high level of normal service. What level of service requirement would be seen as ‘going too far’ for a union-bashing Tory Secretary of State? 50%? 80%? More? 

It is not hard to imagine a situation in the run-up to an election in which a Tory government severely restricts strikes in order to minimise any political damage to itself. Or a Tory PM under pressure within the Conservative Party imposes further restrictions on strikes as a bit of career-saving ‘red meat’ for their hard right-wing backbench MPs. This is a frightening prospect for our democracy.

The mechanism through which this bill would work in practice is the so-called ‘work notices’ that employers will serve on trade unions as they prepare for strike action. These will not only identify the work that must be undertaken during the strike but also identify the very people required to do that work. So people who have voted to strike could be ordered into work and lose their job if they don’t comply. Though the legislation states that the employer should “not have regard” to whether any individual worker who is told to work is a member of a trade union, this is clearly open to abuse. Trade unionists are likely to be targeted by unscrupulous bosses.

The punishment for non-compliance with these notices is also incredibly draconian and a sign that this is about eroding the basic ability of unions to organise strikes. Any individual worker who does not comply with the work notice during a strike will lose their legal protection from dismissal. That is why Labour has rightly highlighted that this bill could lead to the sacking of nurses and other key workers who were being clapped not so long ago. 

There are also sanctions being proposed against the trade unions too. Currently, a lawful industrial action grants trade unions statutory immunity, which protects them from legal action. However, future strike actions covered by this law would cease to be protected if a union fails to take “reasonable steps” to ensure all its members identified in the work notice do not participate in the strike. That could mean employers taking legal action that limits the strike itself or suing the union for damages over the strike. Very worryingly, leading trade union lawyers Thompsons have pointed out that the loss of immunity would not be confined to the “identified workers who fail to comply; it would apply to the entirety of the action”.

So breaches of the new law could see a trade union with more than 100,000 members being sued for damages of up to £1m per action, after changes last year quadrupled the maximum damages that a union can be required to pay in the case of unlawful industrial action. 

The government has been keen to draw parallels with Europe, where minimum service levels do exist. But whereas a British worker who has been designated to work could be sacked for refusing to do so, it appears that in Italy, for example, they can be docked an additional two hours pay but not sacked.

More widely, any comparison with minimum service levels in Europe is deeply and deliberately misleading. Levels of collective bargaining between unions and employers to determine terms and conditions are vastly higher in Europe. So any minimum service levels there form part of a much wider set of negotiations and agreements with the unions. 

Here, collective bargaining is much less common as a result of our incredibly restrictive trade union laws. Before entering parliament, I was a trade union lawyer for a decade and saw day in, day out how the weakness of our trade union and employment rights prevented workers getting justice and a fair deal. Now, with workers increasingly getting organised to demand their fair share, the Tories are aiming to curtail those freedoms even further. 

This bill is not about providing a basic level of service to the public – it is about breaking the growing trade union strength. Rather than addressing the causes of increased strike action, this bill is part of a plan to defeat workers who are simply trying to protect their pay, terms and conditions. As a movement, we must do all we can to ensure this anti-union bill is thrown into the dustbin of history where it belongs.