Strikes (Minimum Service Levels) Bill

Baroness O'Grady of Upper Holloway Excerpts

Consideration of Commons amendments
Thursday 8th June 2023 Lords Chamber

Moved by

[Baroness O’Grady of Upper Holloway]

At end insert “and do propose Amendment 4B in lieu—

4B: Page 4, line 40, at end insert—
“234CA Protection of employees
(1) A person is not subject to a work notice if they have not received a copy of it in accordance with the time limits specified in section 234C(3). (2) It is for the employer to prove that the work notice was received in conformity with subsection (1).(3) An employee may not be dismissed or subjected to any detriment for failing to comply with a work notice and any such dismissal shall be treated as a dismissal to which section 152 applies and any such detriment shall be treated as a detriment to which section 146 applies.(4) A work notice does not place a contractual obligation on an employee to comply with it.””

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, this Motion seeks to uphold a principle long established in British law: that workers on strike are protected against the sack. Noble Lords will recall the concerns of the noble and learned Lord, Lord Judge, at Second Reading. He said that

“this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour … cease to be a right? It answers that question too … the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job”.—[Official Report, 21/2/23; col. 1568.]

Not since the Second World War have a UK Government taken power to facilitate the requisitioning of people to work against their will. This would make the UK an outlier in Europe and flies in the face of human rights, equality and ILO conventions as reaffirmed by the Government in the EU–UK Trade and Cooperation Agreement. The Government have succeeded in uniting employers, unions, the devolved nations and service users against them. In the interests of transparency, I repeat that Labour is 100% committed to repealing this bad Bill.

My Motion returns to the core concern: that striking workers selected by the employer they are striking against can be forced to work or face the sack. Remember, this legislation would unilaterally change the employment contracts of potentially millions of people—and all through secondary legislation with no proper parliamentary scrutiny or accountability. Minimum service levels determined by a Secretary of State could be set up to 100% and require staffing levels to match. The union may have jumped every hurdle to secure a lawful ballot and the worker may have democratically voted to strike, but protection against the sack will be whipped away by an employer simply putting their name on a piece of paper. The worker may not even have received the work notice; there is no obligation on the employer to make sure that they do. Their automatic protection against dismissal will be annulled. This is manifestly unjust.

Remember, too, that minimum service levels apply only to strike days. For the rest of the year, a Secretary of State can close fire stations, see rail services fail, see asylum seeker backlogs grow, increase class sizes and let NHS waiting lists—shamefully now at 7.3 million—soar. I have listened carefully to the debates in both Houses. Ministers are trying to sweep the issue of sackings under the carpet.

On 10 January, the then Business Secretary Grant Shapps said it was wrong to frighten people about their jobs. The Minister has said on many occasions, including on 21 February:

“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]


On 22 May, the Under-Secretary of State told the House of Commons that

“nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]

The official reason from the Commons for rejecting my original amendment is that

“for the legislation to be effective, it is necessary for there to be consequences for an employee who fails to comply with the work notice”.

So the consequence of exercising the human right to withdraw your labour is the removal of protection against unfair dismissal. In a free society, that is chilling. The very workers Ministers thanked for their heroism during the pandemic and stood on doorsteps to clap can be punished for striking with instant dismissal.

Key workers have already sacrificed so much for the rest of us. Unless the Government accept this amendment, Ministers now expect them to sacrifice their right to strike, or pay the price with their livelihoods. I sincerely hope that my amendment will be supported in this House and that it will give the opportunity for the Government to listen and think again. I beg to move.

[Lord Balfe (Con)]

Noble Lords will not be surprised that I agree with the amendment as tabled. I have been a student of history for many years. You do not requisition labour except in times of dire national emergency. We did not even requisition it at the outbreak of the Second World War. Conscription did not come in until half way through the First World War. To deprive a person of the liberty to decide whether they go to work is something that is done carefully and very seldom. I think this goes far too far. It is an imposition not only on the workforce but on the trade union movement.

We spend a lot of time saying how much we want to build a prosperous Britain, but I remind noble Lords that 60%-plus of trade unionists have a higher education degree or more. We are not dealing with the trade union movement of the 1920s. We are now dealing with a trade union movement on which Britain depends for its prosperity. The people who look after the skies, fly the planes, run the National Air Traffic Service, keep our nuclear power plants going and manage our railways are highly skilled people who are in trade unions because they see a trade union as being a way of defending their interests.

Sadly for the party opposite, some one-third of them do not see that party as being the one that will deliver their political future. But that is a good thing, because I do not believe that we want sectarian trade unions. I want people to join trade unions because they want to better the welfare of their country. Taking steps such as this will just alienate people. They are not the sort of steps where people are going to be happy and say, “Oh it’s a really good thing”.

As for minimum service levels, I live in Cambridge. We seem to have had lots of strikes this year, but there has never been one that prevented me getting here, because many of the unions have a harder job keeping their people out on strike than getting the original ballot to put them on strike because, when push comes to shove, a lot of them do not wish to lose the money that they lose. So I think we need to be realistic about this.

All we are doing here is heating up the atmosphere and making it harder for the reasonable people in trade unions to make this country work. Every trade union has within it a group of people who hate strikes; they regard them as being the last thing they want, because it is a sign of failure. So I say to the Government as a whole—because it is not just this Bill—for goodness’ sake, make peace with organised labour; it is fundamentally on your side. It is much more on your side than some of the people who are contributing to the political parties of this nation and doing so for reasons which I would not say are particularly honourable. So please, Minister, send this back to the Commons and look for a compromise. I certainly will not vote for it to go again because I believe that the Commons must, in the end, have its primacy; that is why we have it. But it is quite legitimate to send this back and I ask that, when it gets there, our Ministers on our Front Bench say, “Look, there are very genuine reasons for this. Please try and give us some concessions”.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, we have once again had a reasonably full debate on these matters, so the House will be relieved that I will keep my response brief. We have largely covered many of these points before, so we do not need to repeat them.

Briefly, in response to the noble Baroness, Lady O’Grady, I restate the view of the Government that this Bill is not about sacking workers, and nor is it about forced labour, which is a frankly ridiculous exaggeration. It simply equips employers to manage instances of non-compliance with a work notice. That is exactly the same situation as any other strike action that is not protected under existing legislation.

To be clear, under the original drafting of the Bill an employee who went on strike contrary to being named on a work notice would lose their automatic protection from unfair dismissal only provided that they were notified in advance of the requirement for them to work and that they must comply with the work notice. We expect employees to be told if they are required to work and, in that case, what work they are required to do. In such circumstances, it is reasonable for an employer to consider, if it wishes, disciplinary action if an individual none the less chooses to continue to strike, thereby putting the public at risk. It is at the discretion of the employer as to what, if any, disciplinary action is taken in these circumstances. In response to the noble Baroness, Lady Fox, the Government expect employers to be fair and reasonable and to take this action only where it is necessary.

Unions must have a role to play in minimum service levels, otherwise they would be able to induce people to strike as normal and take steps to undermine minimum service levels being achieved. That directly counters the objectives of this policy. The consequences of a union failing to play that role are consistent with any other failures by a union to comply with any other existing law.

In response to the noble Lord, Lord Collins, as I said in my opening speech the Government are willing to consider whether there is a case to provide further detail on what reasonable steps are, what this means for trade unions and how they might fulfil those obligations.

I stress to this House that Motions C1 and D1 would continue the prolonged and disproportionate impact of strike action on the public. With this legislation, the Government are taking a fair and proportionate approach to balance the fundamental ability of unions and their members to strike, on the one hand, with the need for the wider public to access some of the key services that they expect and pay for, on the other. I therefore hope that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, do not push their amendments. I commend the government Motions to the House.

[Baroness O'Grady of Upper Holloway (Lab)]

I wish to test the opinion of the House.