Out-Law News 5 min. read

Strike action ‘minimum services’ code in Britain drafted

South Western Railway 2022 rail strike notice seo

iStock.com/David Colman

Businesses affected by strike action in Britain this year have an opportunity to help the government find a way to ensure services in six important areas impacting the economy continue to be delivered while such action is underway.

The Department for Business and Trade has opened a consultation on a draft new code of practice, which will stipulate the ‘reasonable steps’ trade unions will need to take to comply with the Strikes (Minimum Service Levels) Act 2023, which was enacted in July following its passage through parliament. The consultation is open until 6 October.

The legislation empowers the government to make regulations to impose minimum service levels to be delivered in six sectors of the UK economy at times of strike action – 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 are covered.

The effect of the legislation is to restrict the protection enjoyed by trade unions and their members when they engage in strike action. Employers in the six sectors will be able to issue trade unions with ‘work notices’ that set out which trade union members in their workforce will be expected to work and what work they must do, in accordance with the minimum service levels set, during times of strike action. Trade unions, and individual members, will lose statutory protections if they fail to comply.

Employment law expert Diane Nicol of Pinsent Masons said: “While employers will need to give careful consideration and take time to identify the employees who need to work, what they require to do, and take care in drafting their work notice, the unions will, as the legislation and code currently stand, have the bulk of the work to do.”

“The unions will lose statutory protection afforded to them, which gives them immunity from being sued by the employer, where they fail to take ‘reasonable steps’ to ensure their members comply with the work notice. Larger unions in that scenario could incur liability of up to £1 million and there is a real risk of employers successfully applying to court for injunctions to end strike action. The unions will not be required to force their members to comply but individuals who do not and participate in the strike action will lose their statutory protection against automatic unfair dismissal  when lawfully striking, and employers will also be able to discipline and dismiss them for reasons like unauthorised absence,” she said.

The draft code envisages a five-step process that unions will need to follow to satisfy the ‘reasonable steps’ requirement when issued with a work notice by an employer. They will first need to identify their members, then encourage their members to comply with the work notice and issue a compliance notice. The third step will involve communicating this requirement to the wider union membership who will be striking, through an information notice. Unions will also be expected to appoint a picket supervisor who will be responsible for ensuring members who are subject to the work notice do not participate in the strike and instead attend work. The fifth step requires unions to ensure the earlier steps are not undermined and that actions taken by its officials and members who seek to do so are corrected.

Nicol said the five-step process proposed in the draft code introduces onerous new obligations, either directly or indirectly, on unions in respect of maintaining robust record-keeping, disclosure, governance and monitoring, and that unions are likely to face practical challenges in meeting the new requirements.

Nicol said: “Unions will need to know who, of the people listed on the work notice, are its members, while the draft code also requires that membership data is accurate and up to date. The unions are also encouraged to work with employers to agree how notices help identify workers – a move that promotes dialogue between the parties. That said, it will not constitute a failure to take reasonable steps if unions fail to identify a small number of their members, as long as the union made a reasonable attempt to identify such members.”

Detailed, technical requirements are contained in the draft code in respect of the content and format of the compliance and information notices that unions will need to issue to members identified from the work notice. The government has included template compliance and information notices in an annex to the draft code. Employers have scope to vary the work notices they issue prior to strike day, which could add to the administrative burdens on unions in respect of issuing further compliance notices.

Nicol said: “With four million working days lost to strike action in the UK since June 2022 – the highest number of days lost in 30 years – it is little wonder that the government has been trying to reduce the effects of widespread strike action, particularly in essential services, given its impact on an already fragile UK economy.”

“The government claims it is attempting to achieve the important balance between the right to strike with the rights and freedoms of the public to go about their daily business. However, Labour has said it would repeal the Strikes (Minimum Service Levels) Act 2023 in the first 100 days of any Labour government, while the TUC, an umbrella body for 48 different trade unions, has said it will take legal action against measures that it sees as undermining trade union members’ fundamental right to strike,” she said.

This threat from the TUC follows legislation, that would allow agency workers to be deployed to replace lawfully striking workers, to enable organisations to keep operating during strike action, being successfully challenged by 13 trade unions via judicial review in July and repealed in August.

Nicol said: “There are options in other European countries to maintain ‘minimum services’ in core areas like healthcare and transport but nothing as prescriptive as what is being proposed. In Spain, there is a careful balancing between the community and the unions and employees calling the strike, and there is a similar approach of proportionality in Germany, but there is nothing as prescriptive as what is proposed in the UK. The position is similar in the Netherlands, where strikes can be restricted subject to the law where this is necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals, while in Australia, the Fair Work Commission (the Australian Employment Tribunal) must approve strikes after a complex process has been followed – but it can also terminate strike if there is, for example, a danger to life or the risk of significant damage to the Australian economy.”

Nicol said: “Tinkering around the edges of strike legislation, including the government’s latest effort, is unlikely to serve workers, their employers, the unions, the public or the economy. It is time for all interested parties to look at a whole new, and more constructive, approach to industrial relations in the UK.”


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