Concerns Raised About Compatibility of Minimum Service Levels Bill with Human Rights

What Is the Bill About?

The bill represents the Government's intentions to enforce as yet undefined minimum service levels across multiple sectors during industrial action. Sectors within the scope of the bill include the NHS, education, and the fire service. The practical effect of the bill will be to allow employers to serve 'work notices' on unions in advance of strike actions. A work notice will identify the people the employer says are required to work during the strike in order to deliver a minimum service level. If a union fails to take 'reasonable steps' to ensure its members comply with the notice, it will lose its immunity from legal action relating to the industrial action. Members also face losing protection against automatic unfair dismissal both if they fail personally to comply with a work notice, and also if their union fails to comply.

What Are the Concerns That Have Been Raised?

The Joint Committee on Human Rights (JCHR) is a cross-parliamentary committee appointed to examine matters relating to human rights within the UK. It has published a report raising concerns about the compatibility of the bill with the Article 11 right to freedom of assembly and association.

Article 11 requires restrictions on strikes to be 'in accordance with the law'. This includes a requirement that any legal consequences of action are 'foreseeable', that restrictions are 'necessary in a democratic society' to meet a 'legitimate aim', that there is a 'pressing social need' for the restrictions, and that they are proportionate.

The JCHR is concerned that the bill is too vague, so that it is not clear how unions will be able to take reasonable steps to ensure members comply with a work notice. The bill allows for regulations to be introduced to set minimum service levels - the JCHR is concerned that these could be arbitrary and not in accordance with the law. The JCHR also considers there is also no evidence of a pressing social need for minimum service levels across the full range of sectors covered by the bill.

The Equality and Human Rights Commission has also published a report outlining similar concerns, including concern about the loss of an individual's protection against automatic unfair dismissal for participating in industrial action. Given that the protection can also be lost if a trade union fails to take 'reasonable steps' to ensure compliance with a work notice, an employee will not know before participating in a strike whether they have lost that protection.

What Is the Current Status of the Bill?

The bill has completed its passage through the House of Commons and is currently undergoing its committee stage at the House of Lords.

For more information on the bill, please contact Allison Cook in our Employment law team on 0117 314 5466. Alternatively, please complete the form below.