The right to strike
The UK and most European countries are signatories to the European Convention on Human Rights (ECHR). Article 11 of the ECHR protects the freedom of assembly and freedom of association (i.e. the right to form and join a trade union). But this doesn’t equate to a right to strike in the UK.
In fact, under UK law, there is no express right to strike and any employee taking industrial action will be breaching their contract.
Instead, the law is framed in a way that affords employees who choose to strike with certain immunities from claims, provided that they comply with strict procedural requirements.
Industrial action in the UK:
In contrast, Europe widely protects the right to strike, often as a part of a fundamental constitutional right (like in Germany, Spain, and Poland) and through case law (such as in the Netherlands).
Even where the right to strike exists, procedural requirements and, at least in theory, certain limitations (such as that strike action must not be out of proportion to its aims) may apply in order for a strike to be lawful.
However, some labour courts (like in Germany) are reluctant to forbid strikes and, as a consequence, the chances for employers to successfully fend off strikes before court are limited in practice.
Similar difficulties exist in Poland in obtaining a court ruling on the illegality of a strike.
If the strike is lawful, many jurisdictions offer protection to employees, including protection against dismissal for taking part (such as in the UK, Luxembourg and the Netherlands).
It is usual for pay to be suspended during a strike, but in some countries, like the Netherlands, unions may have strike funds to compensate their members for suspended pay.
Reasons for strike action
Many countries draw restrictions around permitted grounds for strikes. For example, strike action in the UK must be ‘in contemplation or furtherance of a trade dispute’.
This covers work-related disputes including about terms and conditions or disciplinary matters. In Germany, only ‘collectively negotiable objectives’ may be pursued through strikes, which can cover a wide range of purposes like salary increases, a reduction in working hours or enhanced dismissal protection.
Certain jurisdictions ban politically motivated strikes, including France and Spain.
Essential services and strike action
Until July 2022, there was a ban on agency workers covering for workers on strike in the UK. Similar prohibitions exist in jurisdictions like Belgium, the Netherlands and Germany.
However, in their efforts to curb the levels of disruption, the UK government repealed the ban last year before introducing draft legislation in January 2023 providing for minimum service levels (MSLs) during industrial action in certain sectors.
If passed, requiring employers to maintain MSLs would align the UK more closely with some European jurisdictions including Spain and Portugal which already have minimum service requirements for ‘essential services’.
What constitutes ‘essential services’ varies across jurisdictions, but this typically includes healthcare, public transportation, education and energy supply.
Other jurisdictions, whilst not fixing MSLs, still have limitations in place.
For example, in Poland, there are restrictions on the right to strike imposed on certain categories of employees or in certain professions where it would result in a threat to human life and health or national security.
Whilst not relevant to the UK, various countries like Luxembourg and Germany operate the “peace obligation” principle, whereby parties to a collective bargaining agreement cannot call a strike for contents already regulated by the agreement during its term, subject to certain exceptions.
It is also fairly typical across Europe and the UK for certain categories of worker to be prevented from striking altogether, including the police, armed forces and judiciary.
As the outcome of the legal challenge of the UK regulations allowing agency workers to replace workers on strike is awaited, we can expect the spotlight on strike action to continue.
In the future we might also see more coordinated strike action across countries, as global trade unions are on the rise.
Kloe Halls is associate in the employment & incentives practice at Linklaters