Strikes (Minimum Service Levels) Act 2023
As part of the Government’s implementation of the Strikes (Minimum Service Levels) Act, regulations for Minimum Service Levels (MSLs) for rail, ambulance, border security services and fire and rescue services were enacted in 2023.
The Government indicated that it hoped not to need to regulate in relation to education, other transport, other health services and nuclear decommissioning. However, it has since consulted in relation to urgent, emergency and time-critical hospital-based services and education. Both consultations have now closed, and the outcomes are awaited.
The Act
The Act received Royal Assent in July 2023. The legislation allows the Secretary of State to make regulations to set MSLs in various sectors (“relevant services”) to be implemented during strike action. These relevant services are limited to health, fire and rescue, education, transport, decommissioning of nuclear installations and management of radioactive waste and spent fuel and border security services.
Where strike action is proposed in relation to a relevant service, a union must state in the notice of action whether a MSL is in place. This strike notice should be given no later than 14 days before the strike day. For strikes covered by MSLs, the Act does not apply to call-out bans or overtime bans which are considered action short of striking.
The Act contains detail of the work notices, consultation, and data protection obligations for employers.
The Act stipulates the following steps an employer must satisfy, when putting MSLs into operation:
- When a union gives notice of industrial action in a MSL regulated service, an employer has the right to respond with a work notice, which lists staff members who are required to work to meet the MSLs and the work they are required to perform.
- There should be no more staff members identified than those who are reasonably necessary to maintain MSLs.
- The employer must consult with the relevant unions before issuing the work notice. The work notice must be issued no later than seven calendar days before the strike day (unless a later day is agreed by the unions). This allows for a minimum of seven days consultation.
The Act does not require employers to notify employees identified in the work notice. However best practice would be to inform them in advance of the strike that they will be expected to perform the work identified in the notice and the potential consequences of not doing so.
Once a work notice has been provided to a union, the union must take reasonable steps to ensure that all its identified members comply with the notice. This allows unions to avoid certain civil claim liabilities when undertaking strike action.
Any worker who is identified in a work notice, who partakes in a strike to an extent prohibited by the notice, will lose their automatic protection from dismissal if they are dismissed for taking part in the strike. Ordinary unfair dismissal protections will still apply so an employer would still need a fair reason and process for dismissal.
What’s next?
Employers need to be aware of any MSL regulations that apply within their sector and how to implement these during strike action.
Regulations are now in place for MSLs in ambulance, rail, border security services and fire and rescue services.
Employers should also be mindful of the Department for Business and Trade’s Guidance, “Minimum Services Levels: issuing work notices, a guide for employers, trade union and workers”. This is non-statutory guidance, but Courts and Tribunals may take it into account where they consider it relevant to do so. It sets out the steps that need to be taken before and after a union gives notice to strike. The guidance also encourages trade unions and employers to consider entering into voluntary agreements to cover MSLs.
The outcomes of the recent Government consultations in relation to urgent/emergency health and education services are awaited.
If you have any questions about any of the issues in this article, please contact our employment law team.