In recent months we have seen a significant rise in industrial action across multiple sectors, including public transport; postal workers; nursing and ambulance staff; university employees; Border Force staff and civil servants.
Strikes look set to continue into 2023; the British Medical Association is currently balloting junior doctors on potential strike action for March 2023 and disruption is also likely to hit schools in Scotland as teacher strikes are planned for January 2023.
Despite at least some public weariness over industrial action that has lasted for months, a recent survey for The Independent newspaper found support for strikers continues to outweigh those against the action. Members of the public, for the most part, seem sympathetic to workers’ rejections of pay offers which are well below the current inflation rate of 10.7%.
Insisting that it has been reasonable in following the recommendations of the pay review bodies for the public sector, the Government has so far rejected any further concessions on pay and has taken a range of measures to curb the effect of union actions.
Cover for striking workers
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations), came into force on 21 July 2022, as a prompt response by the Government to increased union activity. In summary, the Regulations remove the previous prohibition on employers hiring temporary workers to cover for striking staff.
In response, various unions, including Unison, have started judicial review proceedings against the Government, arguing (amongst other things) that the Regulations infringe the right to assembly and association under Article 11 of the European Convention on Human Rights, unfairly undermining the very purpose of trade unions.
We await the outcome of the judicial review application, which will be heard in March 2023.
Increased limit on damages awards against unions
The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 sounds as if it could be a fairly dry topic, but its implication for trade unions could be significant. The Order also took effect on 21 July 2022, and under it the Government quadrupled the maximum level of damages that could be awarded against a union in relation to unlawful action, from £250,000 to £1,000,000.
The Government has sought to justify the increase on the basis that the cap had not been lifted for decades and this is simply a correction to an appropriate level, as if regular increases had taken place during this time. It is, however, noticeable how quickly this measure was adopted (within weeks of the first major strikes in the rail sector taking place) and that it came in at the same time as the removal of restrictions on utilising temporary workers during industrial action.
Those of a cynical disposition might note the contrast to other employment law reform measures, which have been promised since at least 2017 but which have made very little progress.
Minimum service levels in certain sectors during action
The Government has not stopped there. It is now proposing to enable employers in the fire, ambulance and rail services to require sufficient employees to work during strike action, to ensure minimum service levels.
The proposed Bill sets out a framework for implementing minimum service agreements and enables the employer to serve a work notice on potential strikers, insisting that they work on strike days to ensure the minimum service level. While the Government will look to reach agreements in other sectors such as health services, education and non-rail transport services, it may impose similar restrictions in the absence of agreements.
Crucially, and linked to the increase in potential damages awards against trade unions for unlawful industrial action, if the union fails to take reasonable steps to ensure that employees identified in the work notice do not take part in any strike, the union would lose its protection from an action in tort by the employer – making it potentially liable for damages up to £1 million.
In addition, employees who are identified in a valid work notice but who ignore it and join the strike action would lose their usual automatic unfair dismissal protection.
What might be ahead?
Rishi Sunak has recently promised “tough” new measures to reduce the impact of the current wave of strike action. While any such further steps may take some time to be implemented, it is clear that the Government is at least giving some consideration to its options.
There had been talk of doubling the minimum notice period for industrial action from 14 days to 28 days; increasing strike ballot thresholds; or even prohibiting strikes altogether in certain sectors such as the ambulance service. The Government did not pursue these ideas in its announcements last week, but even the steps it has taken already are controversial and subject to challenge by the unions.
The unions and the Government appear to be in a stand-off at present. The Government blames unions for (in its words) “inflicting damage on the public” while the General Secretary of Unite, Sharon Graham, has said that “if the Government put more hurdles in our way, then we will jump over them. We are ready industrially and financially”.
The war between the two sides may be undeclared, but it appears to be deep-rooted and there is limited prospect of an immediate truce. Despite some limited recent softening of the tone of Government messaging, we can expect further moves to seek to limit unions’ capacity to take effective action, and for the unions to take steps to combat such moves.
The battle shows no signs of abating just yet.