The government has now published draft regulations setting out MSLs for rail, ambulance and border security staff during strike action. They are expected to be in force by the end of 2023 and will apply to England only.

What is the MSL for ambulance service?

The MSLs for the ambulance services (including healthcare professional (HCP) and inter-facility transfer (ITF) services) are as follows:

• Emergency and HCP calls and IFT requests must be answered and triaged as if the strike were not taking place, and a response must be organised for persons with a life-threatening condition or illness or for whom there is no reasonable clinical alternative to an ambulance, HCP or IFT response as if the strike were not taking place; and

• For non-emergency patient transfer services provided by ambulance service providers, the MSL is that requests for transport must be answered and triaged as if the strike were not taking place, and transportation provided to patients for whom there is no reasonable clinical alternative as if the strike were not taking place.

The government estimates that establishing an MSL at the level proposed would generally require around 80% of an ambulance service's resource on a typical shift.

Process attached to MSLs

Where regulations on MSLs are in place and a trade union gives notice of strike action to an employer, the employer may decide to issue a ‘work notice’ identifying the workers that are required to work, and the work they are required to do during the strike, in order to meet the MSL. Once a work notice has been given to a trade union, the union must take reasonable steps to ensure that all its members who are identified within the work notice comply with the notice.

The government response recognises that instead of expecting that employers will always issue work notices to ensure MSLs are met, employers may be able to secure the same level of coverage through voluntary derogations (voluntary agreements to provide a certain level of cover during a strike). The response states that employers can continue to agree and rely on these instead, as long as they are confident that the MSL will be met.

In recognition of the restriction on the ability to strike, the government has also committed to engage in conciliation for national disputes in relation to ambulance services, where the relevant unions agree this would be helpful, and encourages NHS employers to do the same for local disputes.

What does this mean for employers?

The Strikes Act and the draft regulations represent a major change to UK trade union law and will curtail the trade unions' ability to cause mass disruption to public services through industrial action. Consultation on MSLs in relation to essential and time-critical hospital-based services, which could include nurses and doctors, recently closed on 14 November 2023, so we are currently awaiting the government response. Further consultations are expected on MSLs for other NHS staff and the education sector.

It is worth noting that Labour have said they would repeal the Act / regulations if they form the next government.