“Stop unions derailing Christmas”: the Strikes (Minimum Service Levels) Act 2023
By Rebecca Zahn - Posted on 16 November 2023
This blog draws on R. Zahn, ‘Strikes (Minimum Service Levels) Bill’ (2023) 27(3) Edinburgh Law Review 420-426 available at https://www.euppublishing.com/doi/abs/10.3366/elr.2023.0859
On 6 November 2023, the Prime Minister Rishi Sunak announced new legislation “to stop unions derailing Christmas for millions of people.” On 7 November 2023, the government laid three statutory instruments (SIs) in Parliament “to protect vital public services” from strikes. Keen to avoid a repeat of headlines of travel chaos and following a period of prolonged industrial action across a number of sectors, the laws require the maintenance of minimum service levels during strike action. The SIs will apply to rail workers, ambulance staff and border security staff where recent strikes have been particularly disruptive (similar laws may, in future, be introduced in education (to cover schools, colleges and universities), and for doctors and nurses). Non-statutory guidance on issuing work notices was published on 16 November.
For border security services, the SI requires the provision of services at a level that means that they are no less effective than if a strike were not taking place. The overriding aim is to ensure all ports and airports remain open during a strike. For train operators, staff will be required, during a strike, to ensure that the equivalent of 40% of the normal timetable can operate and that certain, priority routes remain open. Minimum service levels for ambulance workers are to ensure that vital ambulance services in England will continue throughout any strike action.
The SIs implement and expand upon on a commitment made in the Conservative Party’s 2019 manifesto to require minimum service levels during transport strikes, and follow the introduction of the controversial Strikes (Minimum Service Levels) Act 2023. That Act is a short piece of legislation whose stated aim is to find a balance between the ability of unions and their members to strike, with the need for the wider public to be able to access key services during strikes. It permits the introduction of minimum service levels in six “relevant” service areas, namely health services; fire and rescue services; education services; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security. Ministers are given the power – now being used for the first time in relation to border security, rail services and ambulance services – to determine the threshold for “minimum” service levels.
Where minimum service level regulations are made, an employer may issue a “work notice” to trade unions. That notice would identify “reasonably necessary” workers who would be required to work during any strike action. Once a work notice has been issued, trade unions calling the strike action are required to take “reasonable steps” to ensure that their members comply with the notice. Such compliance by union members would mean not participating in the strike on those strike days when members identified in the notice are required by the work notice to work. If a trade union fails to do so, then employers can seek damages from the union for loss caused by the union’s failure to take reasonable steps to ensure compliance with the notice. This is significant as the cap on damages relating to strike action was increased in July 2022 to between £40,000 and £1,000,000 depending on the size of the union.
Apart from the immediate potential impacts on the trade unions and affected employees, the Act, now being given teeth by the SIs, raises serious concerns about the UK’s commitment to its obligations under International Labour Organisation Conventions and the European Convention on Human Rights. It also fundamentally alters the premises upon which British labour law is based in two respects. First, the introduction of additional requirements for taking industrial action in “essential public services”, even after a lawfully conducted vote has been won in favour of the action, marks a break from the traditional approach which has focussed on measures which lessen the impact of disruption rather than attempting to prevent it. Although minimum service levels in relation to “essential services” have been discussed at various intervals, and particularly during the 1970s and 1980s, none have ever found their way into legislation.
Second, the work notice puts employees in the difficult position where they must choose between working while their colleagues – and fellow union members – strike, and potentially losing their livelihood if they contravene the work notice (as refusal to work results in the loss of protection from unfair dismissal). It also contradicts statutory provisions and the common law rules prohibiting courts from compelling employees to work. As Ewing and Hendy have pointed out, “it is necessary to go back to the Defence Regulations of 1940 to find State powers to require people to work, and then only in the exceptional circumstances of a war-time economy under siege”.
Finally, it is not obvious that the Act and the accompanying SIs will have the desired effect of reducing strike action or of ensuring that the wider public can access key services during strikes when they do go ahead. The law already contains a prohibition on strikes which may endanger human life or cause serious bodily injury, and unions in relevant sectors such as fire and rescue services or the NHS have long had so-called “life and limb” policies in place which maintain minimum provision during strikes. The government recognised in its response to the consultation on minimum service levels for ambulance workers that the existing voluntary system of derogations was often sufficient to ensure that the most serious cases are responded to during a strike (and that the voluntary system could continue notwithstanding the introduction of the SI). Trade unionists have pointed out the irony that:
whilst the government proposes to impose [minimum service levels] on workers and their unions, [minimum service levels] for normal times in public services are usually lacking and where they do exist (on the railways and for the ambulance service), are constantly breached – without penalty. There is a real possibility that [minimum service levels] will be set in some sectors at a level higher than the service usually provided.
Since the SIs were laid in Parliament, the Scottish Government has announced that it will not cooperate with establishing minimum service orders and will not enforce any minimum service obligations upon employers. The fact that the proposed minimum service levels for ambulance workers will only apply in England will also limit the Act’s impact in Scotland. In the end, the Act (and the SIs) may be short-lived as the Labour Party have pledged to repeal it if it wins the next general election.