Against a backdrop of increased industrial action in public services, the UK Government proposed a new Bill providing for regulations to set minimum service levels (MSL’s) during strike action in a number of public service sectors.
The Strikes Bill received Royal Assent on 20 July 2023 and the Government is now changing the conditions that trade unions in several public services must meet when organising affected strikes.
What changes have been brought about by the new MSL regulations?
The changes will affect claims for compensation as well as altering automatic unfair dismissal rules for employees. It also has implications for the employers involved, including how they put minimum service levels into effect by giving a work notice, as set out in the new Act.
The Labour Party has stated that it will repeal the legislation if it wins the next General Election. Trade unions have also indicated their intention to challenge the changes in the courts.
Which sectors are affected by the new MSL regulations?
Employers within six categories are potentially included. These are 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.
Employers in the fire, ambulance, and rail categories will receive more detail when the Government consults on MSL regulations. For employers in the other sectors included in the Act, the Government has suggested a different approach. It expects employers and unions in those sectors to reach voluntary MSL agreements, with the Government stepping in and setting them “should that become necessary”.
Once Minimum Service Level regulations are in force, it is anticipated that they will apply to any relevant strike taking place thereafter, and not just those balloted on a subsequent date. In other words, the changes will be applicable even if the employer notice was given before the regulations were in force or the ballot date was before the Act was passed.
The Act excludes overtime bans and call-out bans from strikes covered by minimum service levels. It stipulates the following role for the employer in putting minimum service levels into operation:
- In response to a union giving notice of industrial action in a MSL regulated service, the employer has the right to respond with a work notice.
- The work notice identifies the people required to work to meet the minimum service levels set out in the regulations, and the work to be performed by them.
- Those workers identified should be no more than are reasonably necessary.
- The employer is expected to inform those identified in the work notice, in advance of the strike, that they must comply by performing the work described in the notice during the strike.
- Timing of the work notice, consultation duties, and data protection are covered by the Act which also includes requirements to consult the union before giving the notice and providing at least a week’s notice.
Consequences of non-compliance with MSL regulations for unions
If a work notice has been issued in accordance with the new regulations, and the union fails to take reasonable steps to ensure the compliance of the union members identified in the notice, it risks court action, including damages as a result of that failure. Damages may not extend to losses that would have been suffered by the employer anyway.
Consequences of non-compliance with MSL regulations for employees
There is no automatic protection from unfair dismissal for employees who are identified in a valid work notice, and in breach of the notice, still participate in the strike. This is provided the employer gave them advance notice that they would be required to work during the strike action. However, employees retain their ordinary unfair dismissal protection, if they qualify.
Consequences of non-compliance with MSL regulations for employers
The Act requires that the employer issues a valid work notice, before, for example, seeking damages from the union. Deciding not to issue a work notice in the first place is, it appears, not a breach of the legislation by the employer.
Failure to comply with the new regulations could result in court action being taken. If you need legal advice relating to the requirements set out in the new Strikes (Minimum Service Level) Act, our solicitors are available to assist you.
John McConkey has over 8 years of experience in employment law. John also has extensive experience of employment disputes and has acted for many individuals and employers. John is a registered member of The Law Society and The Employment Lawyers Association (ELA UK). To contact John, visit the Contact Us page. For media enquiries: info@dphlegal.com