Strikes bill could breach UK workers' human rights and expose the government to legal challenges

UK workers’ human rights are at risk under government plans to curb strike activity, according to a report by parliament’s Joint Committee on Human Rights. The strikes (minimum service levels) bill 2023 aims to set requirements for the level of service needed in certain key sectors during strike action.

The bill is making rapid progress through parliament. But it has already sparked concern from various quarters, including unions and the International Labour Organization (ILO), a UN agency set up to protect social and economic justice via labour standards.

Most recently, a report from the Joint Committee on Human Rights said the bill falls short of UK human rights obligations. It has proposed five amendments to the new rules that it believes are needed to protect UK workers’ human rights.

The committee wants the government to provide more detail within the legislation about when restrictions on strike activity can be imposed, how far these limits can go and who should be involved in discussions before strikes. It also suggests more clarity on how employers decide who needs to work during a strike and greater protection from dismissal for people that do strike.

But even with the amendments, which are based on international standards for freedom of association and protection from discrimination at work, the UK government could still be at odds with these standards if the current version of the bill is passed.

The bill would allow the UK secretary of state to set minimum service levels for striking workers in the health, fire and rescue, education and transport sectors, as well as people working in the decommissioning of nuclear installations, the management of radioactive waste and spent fuel, and border security.

Under the legislation, employers in these industries would give a “work notice” to trade unions seven days before a strike. This would identify the services covered by the rules and the names of employees required to work during the strike.

The employer would have to consult with the union about the content of the notice, with the trade union then taking “reasonable steps” to ensure the named persons comply with the notice. Failing to do so could leave the union liable for up to £1 million, while employees that join the strike would lose their automatic protection from dismissal. Any person named in the notice that refuses to comply would also lose this protection.

A focus on specific human rights

When it launched the bill in January 2023, the government argued the new rules were “necessary in a democratic society”, reflecting “a pressing social need”. But the committee disagreed after examining the government’s policy statements and the impact assessment for the bill. The latter has already been called “not fit for purpose” by the Regulatory Policy Committee, an independent watchdog.

The joint committee’s five suggested amendments aim to address concerns about workers’ rights. They are based primarily on Article 11 of the European Convention on Human Rights (which covers freedom of association). The amendments draw on the views about these issues of the European Court of Human Rights in case law which applies in UK law under the Human Rights Act 1998.

In its report, the committee states that “freedom of association” under Article 11 covers the right to strike and that the bill does not adequately protect this right. The committee also warns that minimum service requirements could affect some groups more than others, such as women that work as nurses. This would breach Article 14 which protects against discrimination.

Bolder claims around “forced labour”, which is covered by Article 4 of the ECHR, were not addressed in the committee’s report. This may be because the committee members represent a wide range of political views and they needed to reach a consensus on the report’s conclusions.

Amendments in line with ILO standards

The first amendment to the bill proposed by the committee reflects ILO standards, which the European Court of Human Rights also follows. It sets out when minimum service levels should be triggered:

• to protect the life, personal safety or health of the whole or part of the population
• against an acute national crisis endangering the normal living conditions of the population or
• to protect public services of fundamental importance.

Second, the committee says the bill needs more specific details about limits on strike activity to make sure that any minimum service levels set by the secretary of state do not make strike activity ineffective. The House of Lords Delegated Powers and Regulatory Reform Committee has also requested greater detail on the minimum levels and services covered by the bill. It said that the powers given to the secretary of state would be “inappropriate” if this information is not clearly stated in the legislation.

The third amendment again follows ILO norms. Rather than asking employers to simply “consult” with unions on work notices, the committee argues there should be a negotiated settlement of minimum service levels. It also suggests bringing an independent body into any disputes that arise.

The fourth amendment put forward by the committee would further restrict employers’ ability to choose who must work during a strike. The aim here is to ensure an employee’s trade union activity doesn’t influence their selection because, again, that could make strike action less effective.

Can the Strikes Bill be salvaged?

The fifth amendment in the committee’s report would prevent striking workers from losing their automatic protection from unfair dismissal if a union failed to take “reasonable steps” to ensure named employees comply with a work notice issued under the bill. This is important because employees have no control over the steps a union might take in this situation.

However, this proposed amendment falls short. The committee’s report repeatedly says that it is unclear what steps would be “reasonable” or how a trade union or its members could know that this requirement was being met. This aspect of the bill clearly interferes with Article 11 rights relating to freedom of association, but the committee’s current amendments would not address this flaw in the new rules.

Overall, the recommendations would go some way towards protecting UK workers under international human rights law if the strikes bill is enacted. But even if it accepts these committee recommendations, the government could still be open to legal challenges to the bill, whether through judicial review before the European Court of Human Rights, or at the ILO.

Tonia Novitz is Professor of Labour Law at the University of Bristol and a Vice-President of the Institute of Employment Rights, but the opinions provided here are her own. She gave evidence to the UK Joint Committee on Human Rights at a session held on 8 February 2023.