Anti-strike bill will put UK at odds with Europe, research finds

New research published by UK In a Changing Europe looking at 35 European countries has found that although most have legal provisions for minimum service levels in essential services during strike action (74%), the UK's Strike (Minimum Service Level) bill, in contrast, does not require the services to be "essential".

In addition, among the 26 European countries which enable a minimum service level for essential services, the research found this involves an agreement between trade unions and employers in 85% of them.

The UK bill instead gives power to a minister alone to set the minimum service levels, albeit after consultation with those the minister considers appropriate. 

The report goes on to say that in 69% of European countries, a dispute between a trade union and an employer over a minimum level of service should be resolved by either an independent body or through arbitration, but the UK bill does not indicate how a trade union can challenge a minimum service level or a work notice and does not provide a role for an independent body.

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The research was conducted by Catherine Barnard, Professor of European Union and Employment Law at the University of Cambridge, and UK In a Changing Europe senior researcher Joelle Grogan.

The Strike (Minimum Service Level) Bill – which has been dubbed the "anti-strike bill" by opponents – passed comfortably in the House of Commons at the end of last month but is likely to face legal challenges.

It would give ministers powers to establish minimum service levels in six sectors including health, transport and education.

Business Secretary Grant Shapps has claimed every other European country has some form of minimum safety in place but the report states this is “not entirely accurate”.

The report says: “Our research has shown 74% of European countries have legal provisions for minimum service levels in essential services during strike action.

Grant Shapps has claimed the bill will bring the UK into line with the rest of Europe (Image: PA)

“Among the countries highlighted by the minister [Shapps], Spain, France and Italy have provided for minimum service levels in essential services but Ireland has not.

“Countries which have provided for minimum service levels have also indicated that these must be in ‘essential services’. 

“The UK bill does not require services to be essential, only to fall within one of the listed sectors.

“In 85% of European countries which have legislated for it, minimum service levels involve an agreement between trade unions and employers. An agreement between employer and trade union on minimum service levels can be a condition of a lawful strike (as in Hungary).  

“In other cases, the minimum can be set by primary legislation (i.e. by parliament) but how this is achieved is left to agreement between trade unions and employers. The reasoning is that workers and employers are best placed to understand a minimum level of service, and how it may be achieved.

“The UK bill introduces a power for ministers to set a minimum service level. There is no provision for negotiation between employers and trade unions.

“Employers must consult with the trade union before issuing work notices, but do not have to negotiate or agree on which workers can be requisitioned. The bill does not distinguish between union and non-union workers.”

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The research states the majority – 86% – protect the "right to strike" either explicitly as a constitutional right or as interpreted by courts as an aspect of the right to freedom of association and right to peaceful assembly.

The UK is one of five countries where there is no specific right to strike in national constitutional law. However, it is a member of the Council of Europe, and so signatory to the European Convention on Human Rights.

The case law of the European Court of Human Rights demonstrates that Article 11 ECHR can entail protection of the right to strike. 

In Spain – a country Shapps has frequently said the UK would come into line with – the government has the power to set the minimum service level but must do so in a way that is proportionate – balancing the need of the community for those services and the fundamental right to strike.

In France, minimum service levels are set by legislation in a number of sectors (e.g. primary schools). In other sectors, and in the absence of statutory legislation, the government or administrative authorities may set a minimum level of service. This, however, cannot be the normal level of service and is subject to administrative review. While minimum service level legislation covers the transport sector in France, it has not been used in practice.

The report adds: “In conclusion, the bill introducing minimum service levels sets the UK in line with Europe, but the way in which it introduces minimum service levels is out of line with the majority of Europe.”