Is There a Future for Minimum Service Levels Legislation Under a Labour Government?
Author: Sam Evans
Key Contact: Chris Aldridge
What is the Strikes (Minimum Service Levels) Act 2023?
Following widespread Conservative Party opposition to various strikes by junior doctors and train operators, the previous Conservative Government passed the Strikes (Minimum Service Levels) Act 2023 (the “Strikes Act”). The Strikes Act granted new powers to the Secretary of State for Business, Enterprise and Industrial Strategy to introduce minimum service levels if strikes occurred in a plethora of public sector areas, including health, transport, education, fire and rescue and border control.
Crucially, the Strikes Act did not stipulate the minimum service levels and contemplated that later secondary legislation would set out these numbers on a case-by-case basis.
Under the legislation, when a union served notice of a strike to their employer which related to one of the relevant services set out above, the employer may, having first consulted the union, issue a “work notice”, identifying the workers that are required to work and the work they are required to perform to ensure that minimum service levels are maintained.
Another controversial effect of the Strikes Act was that if an employer validly served a work notice, and the union failed to take reasonable steps to ensure that any union members identified in the notice did not participate in a strike, the union could lose its immunity from being sued under the law of tort and striking employees would lose automatic protection from unfair dismissal or disciplinary action.
Therefore, following criticism of the vagueness of this provision, the previous government announced that it would introduce a statutory code of practice to clarify what ‘reasonable steps’ should be taken to ensure that workers comply with a work notice.
What progress had been made prior to the 2024 election?
On 8 December 2023, the Department for Business and Trade issued the aforementioned code of practice on reasonable steps for trade unions to take to encourage compliance with work notices issued under the Strikes Act. A full analysis of the Code is beyond the scope of this article but broadly speaking it identified four steps to be taken by unions:
- Identify relevant members covered by a work notice;
- Encourage individual members to comply by sending them an individualised “compliance notice” advising them to refrain from striking;
- Appoint picket supervisors at picket lines to take reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified on the work notice not to cross the picket line at times when they are required by the work notice to work; and
- Ensure that the union does not undermine any of the earlier steps taken to meet the reasonable steps requirement and correct any measures which may do so.
The Code as drafted was extremely unpopular with the TUC who argued that it put unions in the unenviable position of policing their members on behalf of an employer. However, note that failure to observe the Code by a union would not by itself have led to grounds for a claim (but could be considered by a tribunal during proceedings).
By the time of the previous election in July 2024, the Secretary of State had not passed any regulations setting out minimum service levels for any of the sectors covered by the Strikes Act.
How will the new Employment Rights Bill impact the Strikes Act?
On 6 August 2024, Deputy Prime Minister Angela Rayner and Business Secretary Jonathan Reynolds confirmed that the Strikes Act would be repealed in the Employment Rights Bill that is set to be introduced by 12 October 2024. The aforementioned Code on reasonable steps will also cease to operate following repeal of the legislation.
This announcement was unsurprising to many observers as this pledge had appeared in the Labour Party’s ‘Plan to Make Work Pay’. In addition, following the King’s Speech, the government released a background briefing note which set out what would appear in the Employment Rights Bill.
As well as the repeal of the Strikes Act, the legislation is set to simplify the process of statutory recognition for trade unions and ensure that workers and union members have a reasonable right to access a union within workplaces. This will mean that unions can access workplaces for recruitment and organisation even if the firms don’t have union representation.
On 20 August 2024, it was reported that the Employment Rights Bill would repeal the Trade Union Act 2016. This law introduced a number of restrictions on the organisation of lawful industrial action, including longer notice periods for strikes, higher ballot thresholds, restrictions on picketing and the expiry of industrial action mandates after six months. The legislation
It is therefore extremely unlikely that any further restrictions on trade union activity would be enacted under a Labour government. It remains to be seen if they will go further than what has been announced above.
For any further questions about employment law, please don’t hesitate to contact Acuity Law’s Employment Law team.
