In our recent December alert we covered the draft regulations published by the government setting out minimum service levels (MSLs) for rail, ambulance and border security staff during strike action. These Regulations have now come into force.
Under the Strikes (Minimum Service Levels) Act 2023, the Secretary of State has the power to set MSLs for strikes in certain "relevant services" by way of regulations. The government published draft regulations setting out MSLs for rail, ambulance and border security staff during strike action. The regulations in relation to the ambulance service and rail services came into force on 8 December. The regulations in relation to the Border Force came in force on 12 December. The regulations will apply to England only.
To accompany the regulations the government has also published a statutory Code of Practice, which also came into force on 8 December. The Code can be accessed here: Code of practice issued by the Secretary of State under section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992 on reasonable steps to be taken by a trade union (minimum service levels) - GOV.UK (www.gov.uk)
The Code sets out the reasonable steps trade unions should take to ensure their members comply with work notices and help ensure minimum service levels are met. Where MSL regulations are in place and strike action is called, employers can issue work notices to identify people who are reasonably required to work to ensure MSLs are met. The law requires unions to take reasonable steps and ensure their members who are identified with a work notice comply. If they do this it will enable the union to maintain statutory protection from proceedings brought by the employer in relation to an act done by the union to induce a person to take part, or to continue to take part, in a strike. Such proceedings could include the employer seeking damages from the union or an injunction to prevent the strike action taking place.
What this means for employers
As mentioned in our previous alert, the regulations represent a significant change in UK trade union law and will curtail the trade unions' ability to cause disruption to public services through industrial action. The Code is intended for use by trade unions which give notice of strike action relating to services specified in the regulations, however, employers operating in such services may also want to familiarise themselves with the Code. The Code imposes no legal obligations and failure to observe it does not by itself make any person / union liable to legal proceedings. However, provisions of the Code are admissible in evidence and can be taken into account in proceedings before any court or employment tribunal.
