Bishop & Sewell

The Government is proposing legislation that will introduce minimum service levels restricting the ability of workers to strike. The Labour Party have responded by saying it would reverse any such legislation whilst other commentators have highlighted the legal and practical flaws in current proposals. Rhian Radia comments that any proposal is likely to increase tension between employer and employee, and as such employers are well-advised to stay on top of grievance procedures so that tensions are managed effectively.

The Government, facing prolonged waves of strike action, is to propose new legislation that will require minimum service levels and safety standard across eight key industry sectors including rail, healthcare, education and fire services in its attempt to balance the ability to strike with the public’s right to access public services.

Its proposals will consider strikes to be illegal if minimum service and safety levels are not maintained and will give employers the ability to dismiss strikers for breach of their employment contracts with workers losing their automatic right to protection from unfair dismissal.

This would work in practice by employers issuing a ‘work notice’, naming the employees required to work to maintain minimum service and safety levels, which becomes the mechanism for dismissal if such named employees become involved in industrial action.

Comprehensive details of the legislation have not yet been published but an unnamed Government source told The Times newspaper that this legislation would “remove the legal immunity for strikes where unions fail to implement a minimum level of service. The strikes will be illegal. Ultimately people could be fired for breach of contract”.

The proposals have, perhaps predictably, been widely condemned by the Labour Party, with Keir Starmer swiftly stating that any legislation would be reversed if he were elected to government at the next general election. Trade unions have said they would challenge any proposed legislation through judicial review, arguing that such curbs on the right to strike would be in breach of the Human Rights Act 1998. A similar legal challenge has recently been upheld by the High Court in response to regulations which allow agency staff to fill in for striking staff.

How to define a minimum service level? This in itself is problematic to the proposed legislation.

Whilst government, trade unions and public sector employers need to break the current impasse on pay and working conditions, any legislation that further restricts the rights of employees to take industrial action is likely to prove counter-productive in the longer term.


Contact our Employment Solicitors

For initial advice or to arrange a meeting with one of our Employment team, please email or call on 020 7631 4141

The above is accurate as at 09 January 2023. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.

Category: Blog, News | Date: 9th Jan 2023

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