Alana Turnbull | Solicitor

Minimum Service Levels During Strike Action

On 06 November 2023, the Government announced that regulations requiring minimum service levels (“MSLs”) of rail workers, ambulance staff and border security will be laid before Parliament. The Government has said in its press release that the MSLs are intended to “ensure vital public services continue if strikes are called”, particularly over the busy Christmas period.

The Strikes (Minimum Service Levels) Act 2023 received Royal Assent on 20 July 2023, and amends the Trade Union and Labour Relations (Consolidation) Act 1992 to enable regulations to be introduced to specify the MSLs which apply in the following sectors:

  • 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

The Government has said that the MSLs are intended to “be effective and proportionate by balancing the ability to take strike action with ensuring that we can keep our borders secure, supporting people to make important journeys including accessing work, education and healthcare, and allowing people to get the emergency care they need”.

For train operators, the MSLs mean that around 40% of the timetable can operate as normal and if strikes affect rail infrastructure services, “certain priority routes can remain open”.  

For ambulance workers, the MSLs mean that cases that are life threatening, or where there is no clinical alternative to an ambulance response, are responded to. It is estimated that this will require around 80% of ambulance services, however, only applies to England.

For border security, the MSLs mean that services should still be provided at a level which is no less effective than if a strike was taking place as well as ensuring all ports and airports remain open, even on a strike day.

Consultations relating to MSLs in essential and time crucial hospital-based services ran until 14 November 2023, and further consultations on MSLs for other NHS staff and the education sector are expected.

Obligations of Trade Unions – “Reasonable Steps”

Where an MSL has been set, and the employer receives a notice of strike action from the Trade Union affecting that service, the employer may issue a “work notice”. A work notice will set out the minimum service regulation that applies to the strike and identify those who are reasonably required to work to ensure MSLs are met.

To help facilitate the MSLs, Trade Unions must take “reasonable steps” to ensure that its members [who are identified in a work notice] comply with it. Failure to take reasonable steps mean that Trade Unions could seek damages from the Trade Union or an injunction to prevent the strike going ahead. Union members who fail to comply with the work notice could also lose their protection from automatic unfair dismissal and could be subject to disciplinary action by their employer.

Between August and October 2023, the Department for Business and Trade consulted on a new draft statutory Code of Practice on the “reasonable steps” that Trade Unions will be required to take in order to meet the requirements set out in the Strikes (Minimum Service Levels) Act 2023. The Government published their response to the consultation on a statutory Code of Practice on 14 November 2023. An amended Code of Practice will now be laid before Parliament and, subject to parliamentary approval, is expected to come into force in mid-December 2023.

The Government have set out that the following reasonable steps must be taken by Trade Unions, where a work notice has been issued:

Step 1 – Trade Unions should identify their members in a work notice.

Step 2 – Trade Unions should encourage their members to comply with the work notice.

Step 3 – Trade Unions should instruct the Picket Supervisor or another Union official or member to use “reasonable endeavours” to ensure that picketers, so far as reasonable practicable, attempting to persuade members who are identified in the work notice not to cross the picket line.

Step 4 – Trade Unions should ensure that they do not undermine any of the steps that they take and correct actions by Union officials or members which may also undermine the reasonable steps. 

The Government’s response also notes that it intends shortly to publish non-statutory guidance for employers, Trade Unions and workers on issuing work notices.

The Department for Business and Trade will also launch a consultation on removing Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003, which currently prevents employment businesses supplying agency workers to cover the duties normally performed by a worker who is taking part in an official strike or other industrial action. Regulation 7 was revoked in July 2022, but became operative again following successful judicial review of R (on the application of ASLEF and ors v Secretary of State for Business and Trade) 2023 IRLR 823.

The response to the consultation is expected to be published in the near future.

Alana Turnbull

Alana Turnbull

Employment Law Team

"I enjoy meeting a wide range of different clients in different industries and assisting them to reach a successful resolution. I assist clients by taking the stress and uncertainty out of the legal process and dispute at hand, providing clear and practical advice."

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