Launch of the minimum service level consultation for rail

Recent months have seen sustained industrial action in the rail sector. On 20 February 2023, the government launched a 12-week consultation on setting minimum service levels for passenger rail.

Unlike in many European countries, there are currently no limits in the UK on the number of employees who are able to take part in strike action together. However, in response to recent prolonged strikes across the country, The Strikes (Minimum Service Levels) Bill has now been put before Parliament in an attempt to alleviate the disruption caused to the public by industrial action. The bill proposes to enable employers within the fire and rescue, health, education, border control, nuclear decommissioning and transport sectors to require a sufficient number of employees to work during strike action so as to ensure that a minimum level of service is possible. The government is now seeking input from the public and a wide range of stakeholders in a consultation which looks specifically at minimum service levels in passenger rail during strikes. The consultation closes on 15 May 2023.

Whilst the new measures would not prevent trade unions balloting for and taking future industrial action, they would reduce the unions’ ability to bring train services to a complete halt. Under the proposals, employers would be able to serve a ‘work notice’ on unions and identify those employees who are required to work on a strike day in order to ensure minimum service levels are maintained. If unions fail to take reasonable steps to ensure that any employees identified do not participate in a strike then the union could be liable for damages of up to £1 million for calling unlawful industrial action. As well as this, in the event that identified employees still choose to strike then employers would have the ability to dismiss them and the employee in question would lose their right to bring a claim for automatic unfair dismissal. 

As a result, the proposals have been heavily criticised by trade unions, with the TUC warning that ‘the legislation will poison industrial relations and lead to more frequent strikes’. It has also been argued that dismissing workers in the transport sector, which is already suffering from severe shortages, will only aggravate issues further and permanently reduce service operation levels.

Not only this, but many contend that the bill would infringe the right to strike, something which must be protected in a democratic society. It is also likely that challenges will be brought on the grounds that the bill is potentially incompatible with Article 11 of the European Convention on Human Rights (the right to freedom of association).  This is particularly so as there is not yet an indication of what will constitute ‘minimum’ service (this being the focus of the consultation) so there is the potential, at peak commuter times, for the government to set a requirement for near full-service provision on the railways. It will be interesting to see what approach the government takes following the consultation.

However, there is no disputing that the UK’s railway and tram networks play a fundamental role in the UK economy. In a survey commissioned by the Department for Transport, nearly 24% of respondents agreed that they will no longer travel via train if the strikes continue for an extended period of time. With commuting being the most common use of passenger rail in England, employers rely on these services for their employees to get to work. Should sustained strike action continue then this not only risks key workers being unable to travel, but also threatens the viability of many businesses. There are also many wider implications on the economy, with the hospitality sector reporting an increase in cancellations as a result of train strikes as people can no longer attend pre-booked events.

It is clear that a balance must be struck between protecting the right to strike, yet also ensuring the public’s ability to access trains so as to ensure that passengers can continue to go about their daily lives.