Unions face ‘onerous’ duties under UK’s strikes minimum service levels laws

The government has launched a consultation and published a draft code on the reasonable steps trade unions should take when implementing minimum service levels during strikes. The Strikes (Minimum Service Levels) Act 2023 which introduces a raft of onerous obligations, chiefly aimed at trade unions came into force weeks ago on 20 July but the consultation process and drafting of the new regulations will take several more weeks to iron out. The consultation runs until 6 October 2023.

A reminder. 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. 

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.

Diane Nicol writes about the draft Code in her article for Out-Law which looks at the practical implications of the legislation and its impact on employers, employees, and trade unions. But, as she points out, while employers will need to give careful consideration and take time to identify the employees who need to work, and the work they require them to do, and take care in drafting their work notice, the unions will have plenty to worry about.
So, let’s hear more on that. Earlier Diane joined me by phone from Glasgow to discuss the Act and the draft Code. So, first question, do the unions face the bulk of the work?

Diane Nicol: “I would say so because there are a lot of steps that they have to take. They’ve got compliance notices; they've got communication notices with their members to tell them that the strike will go ahead but certain individuals will be exempt from the strike and are required to work. So, they're telling these employees who are required to work that they are required to work, the consequences of them not doing so which will be for the employees themselves to lose the protection of automatic unfair dismissal. The bottom line is they will have to get to grips with this very detailed Code of Practice, legislation, and regulations, in a way that they had to with the balloting provisions which led - and we've all seen this - to countless injunction applications by employers some of which were successful. If you remember the BA strike where the union actually wrongly identified lots of people who had left and who were being made redundant and that stopped a very big strike in its tracks. So, I can see that there will be lots of disputes around this and the unions will also have to try and control their pickets through the picketing supervisor because if the pickets tried to stop individuals from working who are under a work notice, then the union and the pickets will be in trouble.”

Joe Glavina: “As it stands, if a union thinks the employer’s work notice is too wide their only option is to challenge it and that involves putting themselves at a significant risk of being sued. So, it’s heavily biased against the trade unions isn’t it?” 
Diane Nicol: “Well, I think that's why the TUC has come out and said this is an awful piece of legislation and they're calling their members, as the Fire Officers Union has done, to have civil disobedience in response to it. The unions and the TUC really don't like this but, of course, Labour  have undertaken, if they do get into power, to repeal this legislation in the first 100 days, but certainly for the unions and the workers, it's very high risk. If you’re a big union like Unite it could be a million pounds of damages or, alternatively, as I said before, injunctive proceedings to stop the strike in its tracks and there's lots of money and legal fees, obviously, involved in that. So, the steps that they have to take are quite considerable and the teaching and the learning of the shop stewards, those on the ground. The other thing is there's an assurance requirement where if a shop steward or another union official goes off on a frolic of their own the union will have to take steps to stop that happening and that’s very difficult for the unions to control. So, I would say a very onerous piece of legislation for the unions and their workers and not fantastic for the employers either, but much better for them, and much better for the public at large, which is what the government is trying to address, and also the economy to try and stop the massive impact of these strikes where we've lost 4 million days since June 2022.”
Joe Glavina: “Given the risks the unions face if they get this wrong do you think one of the knock-ons for from this legislation might be that we see much more action short of a strike and leverage campaigns, perhaps?”

Diane Nicol: “Yes I do, because one thing that we always have to remember about strike action is that the employees don't get paid and the unions have to pay them a minimum amount per day which is not enough with this cost-of-living crisis and the economy that we currently have. So, I do think we will see more of those. But what I would say is this, I think that the approach to industrial relations in the UK is slightly broken and whether anti strike legislation is the right solution is questionable. I think lots of employment lawyers, employers, unions, alike, there must be a better way to try and resolve industrial disputes and whether it is Acas becoming much more proactive, or some sort of other mediator, I think we need a different solution because it's not working. We're losing millions, billions, in relation to these strikes, workers are not being paid, unions are unhappy, employers are unhappy. It's not a very positive landscape out there.”

Joe Glavina: “This is public sector focused and our clients are mainly in the private sector so how much of an impact will it have on them?” 

Diane Nicol: “Well, in reality, for example, if you take transport and the rail strikes that impacts our clients because the employees can't get to work, and there has been a material return to the office, for example. Also, our private sector clients will often be involved with public sector employees, whether it's through contracts or whatever, and it inhibits them from doing the job they have to do and, obviously, it impacts on the economy in general, which is negative for the clients.”

Joe Glavina: “Is there anything else that you'd like to add, Diane. A final message for viewers?”

Diane Nicol: “Really I just think people should contribute to the consultation document which closes on 6 October and give their views. The government came a cropper with the agency supply regulations where they tried to ban agency workers on strike action by relying on stale consultations so I think it's important for employers and employees and the unions alike to get involved, and not just those in the essential services because this essential minimum services legislation is actually going to impact on us all.”

The government’s consultation closes on 6 October so you still have time to respond to it – we’ve put a link to it in the transcript of this programme. We’ve also put a link to Diane’s Out-Law article.

LINKS
- Link to Out-Law article: ‘Strike action ‘minimum services’ code in Britain drafted’
- Link to code of practice: Minimum service levels: Code of Practice on reasonable steps