Trade union round-up: union powers take a hit as 2023 comes to a close

Trade union round-up: union powers take a hit as 2023 comes to a close

14th December 2023

There have been more developments in the trade union world since our last trade union round-up just a few months ago, none of which are likely to be particularly welcome by trade unions. In this article we look at three key developments:

  1. The new Strikes (Minimum Service Level) Act 2023 – guidance released to support those impacted.
  2. The government’s (second) attempt to repeal the ban on agencies supplying agency staff to cover striking workers.
  3. The Supreme Court’s judgment in the Deliveroo case.

The Strikes Act

In our last update, we wrote about the Strikes (Minimum Service Levels) Act 2023 (the “Act”) and its impact on employers, unions and employees. Since then, some steps have been taken on the back of the Act’s introduction and resistance to the Act has increased.

Work notices

A “work notice” is a notice issued by an employer in response to a union’s strike plans in which it sets out what work needs to be done and by whom to ensure that minimum service levels (“MSL”) are maintained during strike action. Work notices can only be used in the context of services covered by MSL regulations.

In November, the Department for Trade and Business published lengthy non-statutory guidance for employers on the issuance of work notices. The guidance sets out the steps employers, trade unions and workers should take in relation to issuing work notices. For example, a notice must not include more workers than are reasonably necessary to provide the MSL specified in the applicable regulations. The guidance also includes the necessary steps for producing a work notice and the duties on workers and trade unions once a notice has been issued. The guidance states that courts and tribunals may choose to consider the views in the guidance “where they consider them relevant”. 

Reasonable steps

The Act requires that, once a work notice has been given to a trade union under the Act, the trade union(s) must take “reasonable steps” to ensure compliance with work notices – but the details of such “reasonable steps” are not set out in the Act. The Department for Business and Trade has now published a Code of Practice for use by trade unions on these “reasonable steps”. The Code does not impose new legal obligations, but provisions of the Code are admissible in evidence and can be taken into account in court or tribunal proceedings where relevant.

Four steps for trade unions are laid out in the Code of Practice: (i) identify members subject to the work notice; (ii) encourage individual members to comply with the work notice by issuing a compliance notice; (iii) appoint a picket supervisor ahead of any picketing; and (iv) ensure that other things are not done by the trade union which undermine the steps they have taken to meet the “reasonable steps” requirement.

The requirement to take reasonable steps does not mean that the union is required to ensure a MSL is achieved. However, if a union fails to take reasonable steps to ensure that all union members identified in a work notice comply with it, then the provisions of the Strikes Act mean that the strike will not be protected. This means that employees taking part in the unprotected strike action lose their automatic unfair dismissal protection under the Trade Union and Labour Relations (Consolidation) Act 1992 (often referred to as “TULRCA”).

Further, where an employee identified in a work notice (whether they are a union member or not) nevertheless goes on strike, they will lose the automatic unfair dismissal protection if they are in breach of the work notice. This is the case even if reasonable steps are complied with.

Alongside this, the maximum damages that courts can issue against a union for unlawful strike action has increased from a maximum of £250,000 to £1 million for the biggest unions.

Criticism and backlash

The government is pressing ahead with using the relevant Secretary of State powers in the Strikes Act to impose MSLs across particular services/sectors but we’ll have to wait and see how this unfolds given the significant backlash that is developing. 

On 8 December, the first regulations came into force introducing MSLs in passenger rail, NHS ambulance and NHS passenger transport services. These regulations have immediate effect so it will be interesting to see how these new MSLs play out amongst the ongoing rail network disputes. On 12 December, regulations also came into force for those working in border security and passport services. It is anticipated that further MSLs will be introduced in other sectors, including education, in the coming months.  

Naturally, trade unions have rebuffed the move. The Trades Union Congress (TUC), which is a federation of trade unions across England and Wales, has called a special congress meeting to discuss the Strikes Act and its general secretary has described the new laws as “draconian” and “spiteful”, saying: “These new Conservative anti-strike laws are unworkable, undemocratic and likely in breach of international law.” Meanwhile, the Labour Party has said that it will repeal the Strikes Act within the first 100 days of its government if it wins the next general election.

Concerns have also been raised by the Joint Committee on Human Rights about the tension between the Strikes Act and the right to freedom of assembly and association guaranteed by Article 11 of the European Convention on Human Rights.

Agency Workers

The government has decided to have a second bite of the cherry in its attempt to repeal the ban on agencies supplying agency staff to cover striking workers. Save for the brief period mentioned below, this ban has been in force since 1976.

In the wake of widespread railway network strikes in 2022, the government revoked regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“Regulation 7”) without consultation and put in place new regulations to cement this change. However, in response to a challenge from thirteen unions, in July this year the High Court quashed the new regulations on the grounds that the government had failed to comply with a statutory duty to consult before repealing Regulation 7.

On 16 November 2023, the government launched a fresh consultation on repealing Regulation 7. With ongoing industrial action and threats of more to come, the Secretary of State for Business and Trade believes that now is the right time to repeal Regulation 7 (again, but to do it properly this time). The Secretary of State states in the consultation that its provisional view is that “repealing regulation 7 for all sectors is the most appropriate course of action”.

At this stage the government is only seeking views, with the consultation phase due to close on 16 January 2024. So, it’s a matter of watch this space…

Deliveroo Supreme Court Ruling

In a recent ruling in the case of Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee and Deliveroo, the Supreme Court has held that Deliveroo riders are not entitled to rights under Article 11 of the European Convention on Human Rights to freedom of peaceful assembly, including the right to form and join trade unions. 

Lower courts had already ruled that the Deliveroo riders were not entitled to be recognised for collective bargaining under TULRCA. The Supreme Court agreed, and unanimously dismissed IWGB’s appeal, holding that the lack of an employment relationship between Deliveroo and the riders meant that the riders were unable to rely on the rights conferred by Article 11 ECHR.

We’ve also been looking at what this judgment means in more detail – see our article here. 

Looking ahead

The government is clearly taking significant steps in relation to strike action, making the trade union space one to keep an eye on over the coming months. However, the Labour Party has already said that it will reverse many of the current government’s actions on strike powers if it wins the next general election in 2024, so it may be a while yet before we have certainty on the longer-term position of the relevant rules.