Government strikes back

Please note this article was updated on 12 December 2023 to reflect the latest developments in this topic.

With further transport strikes planned during the lead up to Christmas, the Government is taking steps under the recent Strikes (Minimum Service Levels) Act 2023 to limit the ongoing impact of widespread industrial action.

Minimum service levels

The Government consulted over proposed ‘minimum service levels’ (MSLs) under the Act, in respect of border security, passenger rail and ambulance services. On 6 November 2023, it published responses to the three consultations and the following day, three sets of draft regulations to implement the applicable MSLs were laid before Parliament. These regulations came into force on 8 and 12 December 2023.

• Border security: the MSLs will apply to Border Force employees and some passport office staff. They require that border security services should be provided at a level that means they are no less effective than if a strike were not taking place. The intention is to ensure that all ports and airports remain open during a strike.
• Passenger rail: the MSLs will mean that the equivalent of 40% of the normal rail timetable can operate as normal and, for strikes affecting rail infrastructure services, ensure that certain priority routes can remain open.
• Ambulance services: the MSLs will require that life-threatening cases, or those where there is no reasonable clinical alternative to an ambulance response, are responded to. This is estimated at around 80% of resources on a typical shift.

The expectation is that employers will be able to ensure the required level of service coverage through voluntary agreements with the unions, rather than always being required to issue work notices to ensure that the MSLs are met.

The Government is also considering whether to introduce MSLs in respect of other urgent and emergency hospital-based services (including doctors and nursing staff), schools, colleges and universities. A further consultation on introducing MSLs in education is open until 30 January 2024.

Guidance on issuing ‘work notices’

On 16 November 2023, the Department for Business and Trade issued new guidance for employers, trade unions and workers on issuing ‘work notices’ in relation to MSLs during strike action. Courts and tribunals may take into account this guidance where they consider it relevant.

The guidance sets out the process for employers to follow once a trade union has given notice of a strike, if it is a relevant service to which the new MSL regulations apply. A strike notice can be issued no later than 14 days before the proposed strike day. The employer is required to take reasonably practicable steps to consult with the union first and then issue a work notice if they fail to reach agreement.

A work notice must be issued no later than seven calendar days before the proposed strike day. It must identify those employees who are required to work during the strike and specify the work they are expected to carry out. On receipt of the work notice, the union must then take ‘reasonable steps’ to ensure that the members identified in the work notice do not participate in the strike. The guidance also suggests that the employer should notify the identified workers themselves separately, so that the workers understand what is expected of them to comply with the MSL.

A separate Code of Practice has been issued on the reasonable steps that must be taken by the union to ensure compliance by members identified in the work notice. A failure to take reasonable steps means that the union would lose its immunity from legal proceedings in relation to the strike and could face a claim for damages or an injunction to prevent the strike from taking place. The Code has recently been updated and republished following a consultation over the summer and it is now awaiting parliamentary approval. It is likely to come into force in mid-December, prior to the new minimum service level regulations as referenced above.

Use of agency staff during strikes

In addition to the introduction of minimum service levels in key public services, the Government has also issued a new consultation on removing the current ban on the use of agency staff to cover the work normally carried out by striking workers. This follows the successful judicial review application brought by thirteen trade unions earlier this year. The High Court held that the removal of the ban under regulations introduced in July 2022 was unlawful due to the lack of proper consultation prior to the regulations coming into force.

This new consultation closes for responses on 16 January 2024. If the Government decides to proceed with its proposals (which it undoubtedly will do), it will issue new amendment regulations and remove the current (criminal) penalties for supplying agency workers to cover industrial action.

Through the introduction of MSLs in key public services, and by making it easier for employers to cover the work normally carried out by striking staff, the Government is resolute in its commitment to limit the impact of future industrial action. Unions are continuing to campaign against these “undemocratic” strike restrictions, and the Labour Party has already committed to repealing the new MSL Act if it secures a General Election victory. Whether any of these measures are ultimately successful in limiting the impact of future strikes will no doubt depend on the timing, and the outcome, of the next General Election.