The Equality and Human Rights Commission (EHRC) has warned that the Strikes (Minimum Service Levels) Bill could see all striking workers in affected sectors losing their unfair dismissal protection.
The EHRC stated they “are concerned that an employee would lose automatic unfair dismissal protection not only if they fail to comply with a work notice, but also if their trade union has failed to take reasonable steps to ensure compliance: an employee will not know before participating in a strike whether that is the case or not.”
An employment lawyer went further, telling Personnel Today the Bill represented an “ideologically driven attack” on workers’ rights.
The criticisms were expressed in a submission to the House of Lords, which will inform the committee stage debate on the Bill.
These measures will likely poison industrial relations and exacerbate disputes rather than help resolve them” – Paul Nowak, TUC general secretary
The organisation noted that in Italy “legislation provides that an individual cannot be dismissed for failing to comply with a minimum service level agreement.”
The equalities watchdog was also critical of ministers for failing to publish any analysis “of the proportionality of provisions in the bill that could remove legal protections for trade unions and employees participating in industrial action.”
The Bill aims aims to introducing minimum service levels for transport services, health, education, fire and rescue, decommissioning of nuclear waste, and border security. Ministers initially focused chiefly on transport because officials believed its provisions were unworkable in fields such as health.
There was a lack of clarity around what reasonable steps a trade union would need to take to ensure that workers comply with a work notice. This was “particularly concerning given the serious financial, reputational and personal implications on individuals of the Bill’s provisions”.
The EHRC says the government could be in breach the law and “advise careful consideration [of these issues] to mitigate against disproportionate or unjustified interference with Article 4, 11 and 14 ECHR rights.”
The equalities watchdog is also critical of ministers’ failure to properly consult on the legislation:
“We note that the Bill allows the government discretion to consult ‘such persons as they consider appropriate’ on minimum service levels, yet there is no requirement to engage nor to attempt to reach an agreement with worker and employer organisations.
“It is not clear why this more collaborative approach – as practised in some states in Europe – was not pursued in the current Bill.”
The House of Lords Delegated Powers and Regulatory Reform Committee last week criticised the Bill for giving blanket powers to ministers while providing virtually no detail.
The EHRC reservations about the measures come on top of those of the Joint Committee on Human Rights (JCHR), which said the bill failed to meet human rights obligations.
TUC general secretary Paul Nowak said: “It is little wonder the EHRC has joined an ever-growing list of MPs, Lords and rights groups in condemning this draconian legislation.
“The EHRC is right to warn that this draconian legislation could see striking workers’ losing a vital right – protection from unfair dismissal.”
He said ministers’ pursuit of the measures would “likely poison industrial relations and exacerbate disputes rather than help resolve them”.
The EHRC’s submission said the Bill raised human rights concerns in relation to Article 4 (Prohibition of Slavery and Forced Labour), Article 11 (Freedom of Assembly and Association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. It recommended that more detail on specific policy choices was needed to facilitate effective parliamentary scrutiny of the Bill.
Legal comment: ‘An ideologically driven attack’
For Neil Todd, partner and trade union law specialist at Thompsons Solicitors, it was no surprise that the EHRC had joined the parliamentary Joint Committee on Human Rights in expressing serious concerns over the lawfulness of the Strikes Bill.
He said: “Its report expresses strong reservations as to whether the Bill complies with a number of the UK’s obligations under the European Convention, which is something we’ve been saying since the Bill was first proposed.
“As well as being an ideologically driven attack on trade unions, the Bill represents yet more bad law making from a party that has turned this into ‘business as usual’ since 2010. Here, the secretary of state has wide-ranging powers to unilaterally impose minimum service levels in a range of broad areas, without appropriate scrutiny.
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“If the government doesn’t now sit up and listen and ditch these proposals, it speaks volumes for the contempt they have for democracy, human rights and working people.”
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