Andrew Gilligan: What a future government should do to grip public sector strikes

Andrew Gilligan is a writer, former No10 adviser and a senior fellow at Policy Exchange.

No rescue of Britain is possible without putting the public sector on a diet. The rise in public workers’ numbers and the collapse in their productivity threatens to crush us. In the long term, tackling this will make the public sector smaller, happier, and better paid. But in the short and medium term it will make tens of thousands very unhappy indeed.

So, as the junior doctors keep on reminding us, any future government will need a strategy for public-sector strikes. And as even Labour has now realised, giving strikers everything they want constitutes an incitement, not a strategy. Here are some better ideas to handle the inevitable pushback.

The most important is moving from employer-wide strike balloting to workplace-based strike balloting. That is, staff in every individual hospital, school, government office or train depot (or, if possible, every ward, every shift, every specialism, every year group – the smallest units you can get away with) must vote in favour of a strike for a strike to be legally held in that workplace.

At the moment, the BMA is allowed to, and does, treat England’s entire NHS junior doctor workforce as a single national unit for balloting purposes. Even if doctors in many hospitals vote against striking, strikes in those hospitals are legal provided the junior doctor workforce as a whole has voted for it.

Between 2016 and last week, there was also a turnout requirement of at least 50 per cent of those entitled to vote – something else which would be harder to meet on a workplace-by-workplace basis than across a whole workforce. That has just been repealed by Labour’s new Employment Rights Act. It should be reinstated.

Interestingly, in the strikes in the Tories’ final years in power, other NHS staff, the nurses and ancillary workers, did ballot on a workplace or trust basis. The result was that significant numbers of workplaces or trusts did not vote for strike action – or they did vote for it, but fell short of the then turnout requirement. Those strikes were therefore patchier, and easier to defeat.

Workplace-based balloting is nothing new. It was broadly the status quo between 1992, when the Trade Union and Labour Relations (Consolidation) Act was passed, and 1999, when the Blair government lifted it with pro-union amendments that became the Act’s new section 228a. It would thus be defensible against the inevitable human rights challenge, even if we didn’t reform (or hadn’t yet reformed) human rights law.

Another obvious step is widening the number of workers defined as providing “important public services”. Their strike ballots were until last week subject to the additional requirement that 40 per cent of those entitled to vote must vote in favour of the action. This too has just been repealed by Labour. This too needs to be reinstated, and at 50 per cent, the original proposed figure, not 40.

Even under the Tories, though, there was a remarkable inconsistency in what work was defined as “important”. It was done by the government, in statutory instruments easily amendable by ministers. Teaching was defined as important, and teachers had to meet the 40 per cent threshold to strike.

But in the NHS, where any action puts people at far greater risk than a teachers’ strike, the only services defined as important were emergency ambulances, A&E, intensive care and lifesaving midwifery and psychiatry. In practice, given the ability to cover, however poorly, for A&E and intensive care during doctors’ strikes, ambulance staff were the only significant NHS profession covered by the regulations.

So strike votes by nurses, junior doctors and consultants never needed to meet the old 40 per cent threshold: a significant hurdle they never had to worry about. That anomaly could easily and justifiably be corrected, and it would again be hard to challenge on human rights grounds, given the difficulty of arguing that doctors are less important than teachers.

There are other things a future government could do. Many public sector workers, including more than 150,000 in the NHS, are here on immigrant visas. Under the immigration rules, employers are required to stop sponsoring their visas if they are absent without pay for more than 20 working days in any calendar year. It’s cumulative, so separate bursts of absence all add up. Legal industrial action doesn’t count towards the 20 days at present, but we could very easily change that. It would significantly dampen the ardour of many visa-holders for joining their comrades on the picket line.

There are sector-specific actions you could take, too. Junior doctors are still, of course, in training. Officially, Health Education England says that 20 days’ absence (14 days for those in the later stages) constitutes “time out of training” which could mean you have your training extended. Strike action does count towards this limit. From the chatter on the junior doctor bulletin boards, it was a significant fear among many strikers. And while it’s not clear the NHS could actually cope with vast numbers of junior doctors having their training extended, it certainly could have coped with enough juniors having their training extended to spook all the others.

And yes, you’re right: every single one of these options was available to us when we were in office, facing our own disruptive public-sector strikes. Every single one of them was suggested, including by me. And every single one of them was ignored. It’s reasons 1,450 to 1,455 inclusive why we failed.

But this is the stuff of government. Not grand gestures, like banning public-sector strikes or minimum service levels, neither of which I thought would work – but tough, consistent and detailed effort to tilt the playing field in your favour.