Given the impact caused by recent teacher strikes, and in a bid to minimise disruption and ensure that students are as unaffected as possible, the government passed the Strikes (Minimum Service Level Bills) 2003 through the House of Commons on 30 January 2023. Covering England, Scotland and Wales and the nursing and transport as well as teaching sectors, the proposed new legislation places the onus on schools and unions to provide minimum service levels when strike action happens. In our latest blog, we examine the legislation in more detail and what it means for school leaders.
The government has argued that the Bill brings Great Britain in line with other European countries where similar legislation already exists and it alleges that it has the backing of international bodies such as the International Labour Organisation (ILO). Speaking in Parliament on 30 January, business minister Kevin Hollinrake defended the government’s stance, saying, “This is not a radical Bill. What we are doing is not even new. We are taking reasonable, proportionate and balanced steps and aligning ourselves with many of our European partners such as France and Spain.”
The Bill’s press release reveals more interesting detail. It states, “The government expects parties in these sectors to reach a sensible and voluntary agreement between each other on delivering a reasonable level of service when there is strike action. This will, however, be kept under review and the Bill gives the government the power to step in and set minimum service levels should that become necessary.” It goes on to add, “As is the case currently a union will lose its legal protection from damages if it does not comply with the obligations set for them within the legislation.”
Even though the statement mentions other European countries, there are however some striking differences in what the UK government is proposing. Firstly, striking is a legal right of the individual in these aforementioned countries whereas it is not in the UK (where only unions have the freedom to do so subject to certain conditions). But perhaps the most controversial aspect of the legislation are the words ‘power to step in and set minimum service levels’ which means that the government, or The Secretary of State to be precise, can establish what those minimum levels are.
Unions to ensure minimum service levels are delivered
One of the main controversies of the draft Bill that is being proposed is that the power ultimately sits with a government minister rather than say allowing for negotiation between employers and trade unions or arbitration by an independent body. This is very different to the scenario of other European countries. This point is actually underscored by guidance published by the ILO itself, “The determination of minimum services and the minimum number of workers providing them should involve not only the public authorities but also the relevant employers and workers organisations”.
So, what happens in practice? In the case of a minimum service level (MSL) situation such as industrial action, schools will need to issue a ‘work notice’ to inform unions of the resources and specify the individuals they need to meet the MSL requirements. And crucially, whereas trade unions are currently protected against legal action from employers, under the proposed Bill, they will lose that protection if their members who are required to work fail to do so. In a similar fashion, those individuals who refuse to work can also be lawfully dismissed from their roles.
For unions, the financial penalties for not adhering to the rules can be significant and depending on membership numbers could run into the millions. What is actually deemed to mean taking ‘reasonable steps’ will clearly also have an impact on unions. Employers for their part can, however, turn to volunteers or in the case of schools, use agency supply teachers. The repeal of Regulation 7, which came into force in July 2022, now allows schools to ‘engage’ with agency teachers to step in as substitutes for those who decide to join the picket line (they were previously not allowed to do so).
To mitigate the damage of strikes on the education of our children and prevent them from having their studies interrupted even more in light of the massive disruption caused by the pandemic, the government is seeking to get its new Strikes (Minimum Service Levels) Bill 2023 through parliament (at the time of writing it was making its way through the Lords). There is however a prevailing sense of injustice given the authority granted to the government, which will erode the power of unions, while attacking the human rights of individuals to strike, as they are free to do in Europe.
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