New government guidance issued regarding the Strikes (Minimum Service Levels) Act

Earlier this year the government passed the controversial Strikes (Minimum Service Levels) Act 2023. Following on from this, detailed guidance has now been published for employers, trade unions and workers on the issuing of work notices.

The Strikes (Minimum Service Levels) Act (Act) came into force on 20 July 2023 and attempts to alleviate the disruption caused to the public by prolonged strikes in certain sectors in the wake of recent, sustained industrial action. The Act gives the power to introduce regulations which specify minimum service levels for public services, such as within fire and rescue and the education, health, and transport sectors. This article follows on from our previous discussion of the Act (which, at the time, was a proposal only).

The Act explained 

The Act sets out the government’s intention to introduce minimum service levels for certain public sectors to ensure that such services remain operational at base level during times of industrial action. This brings the UK in line with existing minimum service level regimes on the continent, in countries such as France, Italy and Spain. 

The introduction of the Act has not escaped controversy. The Trades Union Congress has suggested that it will use legal mechanisms to combat the new law, and there is potential for the Act to receive scrutiny under human rights legislation, particularly regarding its compatibility with the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. The Labour Party has also suggested that the repeal of the Act will be a key priority should they succeed at the next General Election. With strike action persisting into 2024, this issue is undoubtedly a topic of much discussion.

On 8 December 2023, the government published a statutory Code of Practice on reasonable steps to be taken by a trade union. It has also laid three sets of draft Minimum Service Levels Regulations (MSL Regulations) to implement the Act which have come into force throughout December:

• Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023
• Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023
• Strikes (Minimum Service Levels: Border Security) Regulations 2023

The above Regulations currently set out the minimum service levels for each public service.

What does the new guidance set out?

On 16 November 2023, the Department for Business and Trade issued guidance for employers, trade unions, and workers in relation to work notices issued under minimum service level provisions. The guidance summarises the steps that should be taken when a trade union gives a strike notice to an employer in one of the services where minimum service level regulations apply. In particular, the guidance outlines that employers will be able to issue a work notice to specify which employees will be required to work during industrial action to ensure that the necessary minimum service level can be reached.

The guidance recommends that employers develop approaches to identifying the workers required to meet a minimum service level. It encourages voluntary agreements to ensure minimum service levels can be met.

What is a work notice?

If an employer in the relevant public service receives notification that they should anticipate industrial action within a specified period, the employer will then be able to serve a work notice to the trade union in response to indicate how many individuals must work to provide the base level of cover required to ensure the service is operational. Such a notice should include the number of workers and the purpose for which they are required. Notices should not include more workers than necessary to provide a minimum service, as per the relevant MSL Regulations, and, when deciding whether to name an individual on a work notice, employers must not consider:

• whether they are a trade union member or have used trade union services;
• whether they have previously taken part in industrial action; or
• whether the union has raised a matter with the employer on the member’s behalf, or the worker has consented to a trade union raising a matter for them.

There is no statutory duty which requires an employer to issue a work notice; the guidance states that employers should consider whether they can reach the minimum service level without issuing a work notice. A trade union must give 14 days’ notice for strike action and, if an organisation decides to issue a work notice, it must be given to the union with a minimum of seven calendar days’ notice prior to the strike day, unless the union agree a later date. This could mean that an employer potentially only has seven calendar days from receipt of a strike notice to issue a work notice, which is a tight timescale. The guidance indicates that employers should consult with the trade union involved about the minimum service provisions and consider the union’s views before proceeding. 

What this will mean in practice

Notifying workers

Employers are not obliged to notify any identified workers that they are included in a work notice. However, the guidance suggests notifying workers individually in writing of their obligation to work and what work they are expected to perform, by the day before they are anticipated to work. 
Implications for trade unions

The guidance indicates that the onus is on the trade union to take reasonable steps to ensure that their members identified on the work notice comply with it. Failure to do so may result in the trade union losing their protection from claims of damages brought by the employer and could also receive an injunction preventing industrial action from going ahead. A secondary implication is that workers participating in the industrial action on behalf of the trade union would also lose their automatic protection from unfair dismissal under the Act. The same sanction will apply to workers who are specified on a work notice but continue to participate in industrial action.

Data protection considerations

Both employers and trade unions are considered data controllers, as, in producing the work notices, they process the personal data of their workers and members. The guidance therefore indicates that they need to remain compliant with data protection legislation and continue to process data in a lawful, transparent way in which the details they collect are both relevant and necessary, and not to an extent which is excessive. 

Other employee relations issues that may arise

When employers are considering which individuals to identify in a work notice, they will need to consider timing and duration of the strike, and the effect of sickness or other absence, as well as annual leave. They may also wish to consider who is available to work, who has the relevant experience, skills or training, and it would be worthwhile keeping a record of who has been chosen and to which work this relates. 

Concluding thoughts

The Act and its accompanying documentation mark a significant change to the way in which employers interact with trade unions, and so employers should consider the impact of this new legislation carefully. Understanding the MSL Regulations and the guidance is key to establishing compliance, as well as ensuring that services are staffed appropriately in turbulent times of industrial action.