Government proposes legislation to mandate minimum service levels during strike action

The industrial landscape has become increasingly complex. The second half of 2022 saw strikes across many sectors including rail, mail, and nursing. Now, teachers are the latest group to strike. In response, the Government has introduced the Strikes (Minimum Service Levels) Bill, which seeks to reduce the impact of strike action by guaranteeing a minimum level of service across various sectors during periods of strike action.

Under the new plans, the Secretary of State for Business, Energy and Industrial Strategy would have the power to set minimum service levels across the following sectors:

• Transport
• Healthcare
• Education
• Fire
• Border security
• Nuclear decommissioning

Employers in those sectors will then have the power to serve a ‘work notice’ on trade unions where members ballot for strike action, in which they would: a) identify the individuals required to work to maintain minimum service levels; and b) specify the work to be done by them. It is proposed that employees who are identified would lose their right to protection from unfair dismissal if they then took part in strike action and refused to work. Additionally, a trade union would lose its immunity from liability in tort under the Trade Union and Labour Relations (Consolidation) Act 1992 if it failed to take reasonable steps to ensure that all members of the union who are identified comply with the requirement to work.

The Government has stated that it will first consult on minimum service levels for fire, ambulance, and rail services, and hopes not to have to use these powers for other sectors included in the Bill. It expects relevant stakeholders in the other sectors to reach a ‘sensible and voluntary agreement… on delivering a reasonable level of service when there is strike action’ but will ‘step in and set minimum levels should that become necessary’.

It is not yet clear what minimum service levels will look like in each sector, or what the benchmark would be for employers and trade unions when negotiating.

The Bill has made quick progress through Parliament, having already passed to the House of Lords, where it is due for a second reading on 21 February 2023. However, there is no guarantee that the Bill will survive the House of Lords, where the Government does not have a majority. Even if the Bill does become law, we can expect trade unions to challenge the new requirements on human rights grounds. The Government’s recent reforms on the use of agency workers to cover those on strike have been challenged on identical grounds and are already subject to judicial review in early 2023.

Should the Bill become law, it will provide employers operating in the sectors it covers with significant new protections from industrial action. In particular:

• a departure from current legislation, which provides blanket protection from dismissal to members participating in lawful strike action. Employers could effectively dismiss those employees that fail to comply with a ‘work notice’ for breaching their employment contracts, without being subject to subsequent unfair dismissal claims; and
• the imposition on trade unions of an obligation to take reasonable steps to ensure compliance with minimum service levels is likely to significantly reduce their ability to cause mass disruption to important services.

However, the Bill is not all good news for employers because of the new administrative and compliance challenges it creates. In particular, negotiating minimum service levels will be unfamiliar and unpredictable territory for employers and trade unions. As the Bill does little to expand on what minimum service levels will look like in each sector, their practical impact remains uncertain. Trade unions have pointed to an unintended consequence of the proposed legislation in circumstances where an employer has agreed minimum service levels and then proposes mass redundancies which make it impractical for those levels to be met.

Finally, it is important to emphasise that as the Bill only applies to specific sectors, it is unlikely to have a wider impact on the rising levels of strike action taking place in other sectors across the UK. The current protections afforded to striking workers in these sectors will continue to apply.

Shea Brinsley, a trainee solicitor in the employment team, contributed to this article.