Draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Mick Whitley Excerpts

Monday 27th November 2023 General Committees

[Kevin Hollinrake]

The answer to the first question is no. The answer to the second question is that the legislation balances the rights of individuals to access vital public services with the rights of people to go on strike. That is the simple balance that we are trying to strike. At times the Government have to step in, and we should always use legislation as a last resort. I totally agree with the hon. Gentleman that that has been our political philosophy, but bearing in mind the hundreds of thousands of hospital appointments that have been cancelled and the billions of pounds in costs for the hospitality sector, particularly over last winter, it is right to have a better balance between the rights of individuals and the rights of workers in this area.

I will summarise the reasonable steps. First, a trade union should identify the workers who are its members in a work notice. That will enable the union to take reasonable steps regarding those workers. Secondly, trade unions should send an individual communication or notice, known as a compliance notice, to each member identified in a work notice to advise them not to strike during the periods in which they are required by the work notice to work, as well as to encourage them to comply with a work notice. Thirdly, trade unions should instruct picket supervisors to use reasonable endeavours to ensure that, so far as is reasonably practicable, picketers avoid trying to persuade members who are identified in a work notice not to cross the picket lines at times when they are required by the work notice to work.

[Mick Whitley (Birkenhead) (Lab)]

Does the Minister agree that the requirement that a trade union, with perhaps as little as four days’ notice, identify its members that have been issued with work notices in disputes potentially involving hundreds of thousands of workers across hundreds of workplaces is entirely impracticable? It risks exposing even the trade unions that work 24/7 to fulfil their obligations under the code of practice to a disproportionate and unfair penalty.

[Kevin Hollinrake]

No, we do not agree. The provisions and the code of practice are workable. As I have said, we undertook a consultation to make sure that that was the case, so we believe the proposals are workable.

--- Later in debate ---

[Justin Madders]

The overwhelming response to the consultation on the measure, and to that on the original Bill, was that the process will be very difficult in practice. That is because it is not about providing minimum service levels, but about trying to stop trade unions from exercising their lawful and democratic right to take industrial action.

The instruction at paragraph 25 of the code of practice that a union should send its compliance notice to its members “by electronic means” is the biggest irony in all this, because the Government have sat on a review on e-balloting for industrial disputes for some five years, yet made no attempt to implement it. Does the Minister finally accept that it might be reasonable to allow trade unions to enter the 21st century, with industrial action communications sent by email? Does he accept that that should include the actual balloting for industrial action? It is inconsistent, to say the least, that the code of practice specifically instructs unions to contact members about industrial action electronically, yet the law specifically prohibits them from balloting their members by email. I know that the Minister has had a lot of practice in e-balloting from his party’s leadership contests, so does he now accept that it should be possible to ballot trade union members on industrial action electronically?

Paragraph 25 further states that

“if the union is aware that any member will be unlikely to access electronic communications before the…strike”

it should send notice by “first class post” instead. What on earth does that mean? Is a union to require a read receipt from every member to form a view of whether they are likely to access their emails? Does the Minister realise that even four days’ notice would be asking rather a lot of Royal Mail, leaving aside bank holidays and weekends, because the latest stats on the delivery of first-class mail show that it is well below its performance targets?

The most problematic aspect of the code is probably paragraph 20, given its provisions on varying work notices. Anyone tasked with ensuring that all the right members are contacted within the incredibly tight timescale of seven days will experience a logistical nightmare, and that would only be exacerbated by the option of amendment only four days out.

Sadly, the provision leaves the door open to employers to deliberately and purposefully issue erroneous work notices in the first instance, only to vary them closer to the relevant date with a view to undermining industrial action. Members should not forget that “four days before” can start at 11.59 pm on the relevant day, effectively leaving three days. While the motivation might not be malevolent—it could be due to negligence—the practical effect of the requirement will be that a union would be expected to contact an employee to encourage them to attend work on the day of a strike, but then say to them a couple of days later, “Actually, you don’t need to attend,” while telling a whole new set of people that they need to attend. It is not hard to see how that could be abused to create an air of confusion on the part of the worker as to whether they are meant to be on strike or at work. When the consequences for making a mistake are so great, it is understandable that a worker would be likely to err on the side of caution and attend the workplace. Of course, all the energy and time expended on deciding who needs to get a notice and who does not could be spent on trying to resolve the dispute.

All those problems are compounded by a contradiction in the code of practice. Paragraph 19 indicates that, under the duty, a union is expected to take reasonable steps to contact members included in a work notice as soon as is “reasonably practical”.

[Mick Whitley]

Does my hon. Friend share my confusion about why the onus for communicating with members who have been named in work notices has been placed on unions, rather than on employers, which routinely communicate with their employees as a matter of course? Does he also worry, as I do, that given the difficulties that unions often encounter in contacting members, the measure greatly increases the likelihood of workers being subject to disciplinary action and even dismissal?

[Justin Madders]

My hon. Friend is absolutely right that the code puts the onus on trade unions. How odd is it that we are in a world in which a Government instruct a trade union to tell employees to attend the workplace? I cannot think of anything more bizarre. But the measure is not actually about ensuring that people attend work; it is about undermining collective industrial action. From what we have seen today, it is clear that that is exactly the Government’s intention.

The trade union’s duty to take reasonable steps to contact members as soon as is “reasonably practical”, contained in paragraph 19, is contradicted in step 2 of the code, which provides guidance on how to encourage members to comply with a work notice. In this step, the code states that once a union has identified all its members, it should communicate this to them via a compliance notice. Paragraph 23 states that the union

“should send the compliance notice before the strike action”

but that it would be “reasonable” to send the notice

“once it is clear that the work notice will not be subject to variation by the employer—either because the last day on which the employer can vary the work notice without the union’s agreement has passed or because the employer has notified the union in writing that it will not vary the work notice”.

That is completely inconsistent with what the code of practice states earlier—that the union should contact its members as soon as is “reasonably practical”. They cannot both be right. Given the consequences of getting this wrong for both the trade union and the individual, the code of practice really ought not to contain such a mixed message. Will the Minister therefore confirm whether a union is supposed to wait until the conditions in paragraph 23 are met, or just get on with it as soon as is “reasonably practical”, as paragraph 19 suggests?

Beyond that issue, the code’s recommendations on encouraging members to comply with a work notice are plainly unreasonable, misleading and complex. Step 2 of the code contains stipulations that are drafted in such a way that grounds for legal challenge will inevitably be opened. Paragraph 26 and annex A, in particular, can be seen to do this. Paragraph 26 includes a list of eight features that a compliance notice must state “clearly and conspicuously”, and annex A contains a pro forma template for unions to use, which is recommended for use by unions at paragraph 27. Paragraph 27 states that a union can amend the template but that the compliance notice must retain

“the overall substance and effect of the notice”.

So why go down this road at all? Why go to the trouble of drafting a template letter and then say that unions can vary it? Is that not just inviting trouble?

We know that the slightest transgression in an industrial action ballot can lead some employers to seek injunctions, even though the practical effect of that transgression is nil, so there is a concern that any deviations from the template will invite legal challenge from employers. The TUC believes that deviations

“will almost certainly lead some employers to seek to legally challenge unions”.

Does the Minister agree with that point of view? How does he think that such satellite litigation will aid the resolution of industrial disputes? Can he also explain the rationale for including a pro forma template on top of the guidance contained in paragraph 26?

Unfortunately, that is not the only way in which the code could instigate legal challenge. Plenty of areas in the code appear to allow for challenges if the union makes an error. Paragraph 39, for instance, states:

“communicating with members whom the union knows are identified in a work notice to induce them to strike”

could constitute an act that undermines steps taken to comply with a work notice. Taken literally, that means that for the period of the work notice, the trade union cannot contact any member subject to one at all with any information on the industrial action. Is the Minister saying that on certain occasions, for a certain period, a trade union cannot contact some members to tell them what is happening with the strike? The mere mention that a strike is taking place could be considered an inducement to strike. I am interested to hear what the Minister says about that, because to me it looks like a fundamental attack on democratic freedoms.

If the Minister does not accept that that is the intention behind paragraph 39, does he accept that there could be a real problem in some circumstances—for example, where there is a technological or administrative error in distributing emails on a mailing list that could risk some of the wrong members receiving that email? Trade unions in those circumstances would lose their protection from liability in tort and employees would lose their automatic protection from unfair dismissal. Is that really what is intended with the code of practice, because that is what paragraph 39 seems to suggest?

The stakes are far too high for such an error to constitute a breach of the code, especially given that the names included in the work notice are liable to change, often at short notice. As there is already guidance in the code stating that compliance notices should include statements telling those on work notices to ignore calls to take part in strikes, paragraphs 38 to 40 seem excessively punitive and unnecessary. The only conclusion that one can draw from such a communication—a blackout around strikes—is that this is a deliberate attempt to undermine trade unions and impact the effectiveness of industrial action.

I will return briefly to the annex and paragraph 26; this is an example of the state trying to dictate the contents of a union’s communications with its members. First, according to the stipulation in paragraph 26(f), unions are expected to encourage workers to undertake the work set out in the work notices. We think it is inappropriate for a union to encourage a worker to comply with a work notice, as it could undermine the collective endeavour of industrial action. Yes, a union must advise a worker of the possible consequences of failing to comply with a work notice, but it is not the role of the state to instruct a union to do that in an enthusiastic way, as is implied in the code of practice.

What does “encourage” even mean? Is it like a football supporter encouraging their team from the terraces and cheering the team on? Is it sending text messages to a mobile phone with affirming messages such as “Please go to work today. I know you’ve got this”? It seems a very odd thing to request that a trade union encourage its members to go to work, given that presumably on every other day, the employee does not require such encouragement to turn up and do their job.

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[Chris Stephens]

That is a magnificent point. This has been debated on various occasions on which we have asked the Government—perhaps the Minister will rise to his feet; I will take his intervention right now—why minimum service levels are necessary on industrial action days, but not at any other time. If there were statutory guidance and a code of practice for employers, one would certainly ask the question: would employers demand that there be more workers on shift on days of industrial action than on a normal working day? The Minister knows this, because it has been raised consistently when we discuss these things that employers are always at it.

I was a proud trade union activist. I refer to my entry in the Register of Members’ Financial Interests: I am a proud member of the Glasgow city branch of Unison. We had to negotiate life-and-limb cover for strike days—yes, the legislation sets out that there has to be life-and-limb cover—and employers would ask for more people on shift on days of industrial action than on normal working days. I will take an intervention right now if the Minister can give us an assurance that no employer across these islands will ask more workers to be at work on days of industrial action than on normal working days. I am more than happy to take an intervention from the Minister right now.

I note for the record that the Minister has not risen to his feet.

Since the passage of the anti-strike Act, there have been suggestions that the Act’s provisions on minimum service levels would be similar to the norms of Europe. Well, no, they are not. I will not repeat all the clarifications that I and others have offered on what actually happens in Europe, as those fell on deaf ears. I will, however, repeat our warnings that this nasty legislation will prove to be severely counterproductive and damaging overall to society. Taking a negotiated, voluntary and successful approach to minimal service levels and mutating it into an imposed, coercive and ultimately failed system is very foolish, but it is unsurprising from those who choose not to listen or learn.

Let me comment in detail on one sector in particular: the health sector. I will do so by referring extensively to the TUC’s consultation response on minimum service levels for hospital services. I will also refer to the views of the British Medical Association and the Royal College of Nursing.

The TUC believes that the Act

“is unfair, undemocratic and likely in breach of our international legal commitments.”

Its view is that it is

“the fundamental right of a worker to take industrial action to defend their pay and conditions”

and that

“secretaries of state are to be given enormous power to define and introduce minimum service requirements”.

It says the Act is

“draconian: it could lead to individual workers being sacked for taking part in industrial action that was supported in a democratic process”,

with trade unions facing large damages if deemed to be non-compliant with this code of practice. Perhaps the Minister will answer the question with which he was challenged by the shadow Minister, the hon. Member for Ellesmere Port and Neston. The Minister was quoted as saying that no one would be dismissed as a result of this legislation, but where does it say that?

According to the TUC, the Act is “unnecessary”—it is “custom and practice” to agree “life-and-limb cover”—and “counter-productive”. That, however, is not the view of only the TUC, which points out that the Government’s own impact assessment suggests that

“industrial disputes are likely to become more protracted and prolonged as a result of introducing minimum service levels”.

In summary, the TUC believes the approach is unacceptable, anti-democratic, draconian and, ultimately, both unnecessary and counterproductive.

Given the purpose of this Delegated Legislation Committee, a further quote from the TUC might prove to be the undoing of the code of practice:

“Given the fact that the services subject to MSLs are to be determined by Secondary Legislation, there remains a number of uncertainties around (a) the extent to which the policy would restrict the right to strike, (b) the relationship between the ability to strike and the strength of workers’ ability to bargain on terms and conditions of employment through collective bargaining, and (c) the value workers place on collective bargaining relating to terms and conditions of employment.”

Those comments are also derived from the Government’s impact assessment.

Conservative Members may simply choose to disregard the findings of such an impact assessment. They would find interesting backers in doing so, as the Government’s own Regulatory Policy Committee judged the impact assessment of the Act

“red-rated as not fit-for-purpose”,

and found that the Government make

“use of assumptions in the analysis which are not supported by evidence”—

here is us thinking that the Boris Johnson days were gone. There are other, less parliamentary ways to describe making use of assumptions that are not supported by the evidence, which I will leave to the imagination of Members.

Let us now explore the views of the British Medical Association and the Royal College of Nursing. Agreement among health sector unions is clear, as the BMA also considers the proposals for minimum strike levels to be

“counterproductive, undemocratic, unworkable, and draconian”.

The legislation seems to be little more than a smokescreen. Instead of addressing the state of the NHS, which currently compromises patient safety on a daily basis, or the underlying reasons why doctors and other healthcare staff have been striking in some parts of the UK, if not in others, the Government are trying to paint healthcare workers as the villains of the piece, rather than the victims of governmental action and inaction. I specifically mention striking “in some parts of the UK,” because a different and more respectful approach to public service employees in Scotland has resulted in something closer to industrial harmony. Perhaps others should watch and learn from what the Scottish Government are achieving in public sector relations.

Throughout these islands, a long-standing history of constructive joint working between NHS employers and trade unions at a local level has patient safety at its heart. The introduction of minimum service levels in hospitals would poison those industrial relations. It would replace a system under which those who understand the local situation tailor their response to the needs of hospital service users with a national service level mandated from Whitehall and designed by those who arrogantly assume that they know better.

Although the Government’s consultation seemed to find that several critical incidents arose due to strike action, data from a freedom of information request suggests otherwise. It is unclear whether any were a direct result of action being called. Rather than demonstrating that patient safety was compromised due to industrial action, the data shows the importance of tackling the stresses that the NHS faces on a daily basis.

The BMA has repeatedly raised concerns that the “reasonable steps” that unions would be required to take to comply with the Act would force unions to act in a way that undermines their responsibility to represent their members. It is not “reasonable” to expect unions to take any steps that would undermine legitimate strike action, for which they will have passed a high threshold to have a lawful mandate under trade union legislation.

[Mick Whitley]

I declare an interest as a member of Unite the union. The hon. Member is making an excellent speech. Does he share my concern that by allowing employers to amend work notices up to the end of the fourth day before industrial action commences, the code risks allowing unscrupulous employers to create formidable and unnecessary bureaucratic hurdles for trade unions to overcome, thereby giving employers the opportunity to intentionally undermine entirely legitimate and otherwise lawful strike action?

[Chris Stephens]

I agree with all that. I know that this will surprise some Conservative Members, but I do believe that there are unscrupulous employers out there. I believe that unscrupulous employers already use existing anti-trade union legislation to try to stop industrial action taking place with some daft minutiae over lists of members and so on. The point I was making is the Government have already imposed extremely high thresholds that trade unios must cross before industrial action takes place.

The draft code of practice does not achieve the necessary clarity of what the duty will mean in practice for trade unions. Instead it presents issues for trade unions over how they will be able practically to implement the proposals. It creates incredibly unrealistic timescales on unions, requiring them to start identifying members

“as soon as reasonably practical”

after receiving a work notice. Such weasel words threaten vindictive penalties for being unable to guess what a Conservative Minster thinks is “reasonable”.

I will refer to some surprising comments from the Royal College of Nursing. They are surprising because the RCN was advised that the legislation would not affect it at all, but perhaps it was not too surprised to discover that that was not the case. A Minister at the Dispatch Box told nurses that the Strikes (Minimum Service Levels) Bill was “not about nurses.” That was always flagrantly untrue, as the RCN clearly stated at the time. Specifically, the Leader of the House said on 26 January 2023 that the Bill was “not about nurses”, and that it was “wrong” to suggest that it was.

Through its draft regulations for NHS ambulance services and the NHS patient transport service, the Government are now explicitly seeking to impose minimum service levels that apply specifically to nursing staff in ambulance services. The RCN asks that Parliament, including Members present here, should hold the Government to their words and reject regulations that would impose minimum service levels on nursing staff.