Strikes (Minimum Service Levels) Bill progresses to the House of Lords

Over the last few months, it has been hard to miss the news coverage of the wave of strike action across the UK. However, it may have slipped some people's notice that the UK government is planning to legislate with a view to ensuring minimum service levels are maintained in certain sectors.

Impacted sectors

The Strikes (Minimum Service Levels) Bill (the Bill) – which has progressed to the House of Lords – aims to do just that. The impacted sectors are:

• Health services
• Fire and rescue services
• Education services
• Transport services
• Decommissioning of nuclear installations and management of radioactive waste and spent fuel
• Border security

The precise scope of these services will be defined in future regulations (and may well follow the existing regulations on additional ballot threshold requirements for 'important public services').

As drafted, the Bill will apply to any strike action which post-dates the Bill's enactment. This means it could apply to strikes which have already been balloted / notified but where the strike has yet to commence.

Regulations

The Bill as drafted is short and light on detail. It does not set out what the minimum service levels might be. Instead, it grants power to the Secretary of State to do so via minimum service regulations. There is a requirement for the Secretary of State to consult on any such regulations with such persons as they deem appropriate but there is no detail on who that might be and no obligation for any agreement to be reached.

The government has said that it intends to consult first on minimum service levels for fire, ambulance, and rail services.

Work notices

An employer operating in one of the sectors where regulations are made stipulating minimum service levels will be able to (but does not have to) give a "work notice" to a trade union which has given notice of industrial action. A work notice can't extend to action short of a strike (e.g. work to rule or a ban on overtime).

An employer must consult with the trade union before giving a work notice about the number of individuals required to continue working and the work they may be required to do. The union must "have regard to any views expressed by the union" but there is no need to reach agreement.

A work notice must:

• Be provided at least seven days before the first day of the strike (though the notice can be varied after further consultation with the union and served four days before the strike date, or later if agreed with the union).
• Specify the individuals who are required to work during a strike. This appears to be named individuals, rather than roles. When deciding who to identify in a work notice, an employer must not take into account whether or not someone is a union member.
• Specify the work that is to be carried out during the strike to ensure the minimum levels of service are met.

The work notice should not identify more individuals than are "reasonably necessary" for the purpose of providing the levels of service under the minimum service regulations, which appears to give an employer a wide discretion.

There may well be an incentive for employers and trade unions to consult on those who should appear in a work notice well in advance of strike action commencing:

• Employers will want to avoid legal challenges on whether those they have identified go beyond what is "reasonably necessary";
• Trade unions will want to avoid the risk of losing legal protection for them / staff when striking.

Loss of protection

Trade unions will lose immunity from civil action if they fail to take reasonable steps to ensure compliance with the work notice by any union members identified in it. It is not clear what "reasonable steps" might be. For instance, will it be sufficient for a trade union to tell those named in the work notice to attend and undertake work, regardless of whether the individual then complies?

This loss of immunity could lead to more applications for interdicts / injunctions. Employers could also sue the union for damages caused by any failure to take reasonable steps (disregarding any loss that would have been caused by the strike if the union had complied with its obligations).

Where an employee identified in a work notice (whether they are a union member or not) goes on strike, they will lose unfair dismissal protection if they are in breach of the terms of the work notice. If they are a key member of staff, will an employer want to discipline / dismiss them even if the individual doesn't haven't the usually statutory protection? How would the employer then maintain the minimum service levels?

Disputes

As currently drafted, it seems like there are many areas of the Bill which could lead to potential disputes.

It is also possible that the Bill will face challenges in the House of Lords and, if passed, from trade unions on the basis that it breaches international treaties including the European Convention on Human Rights, particularly Article 11 which provides for the freedom of association and based on case law, the right to strike.

More information

It remains to be seen how the Bill will progress but, as it stands, it would certainly seem to significantly restrict the impact that strike action may have on employers, if employees are compelled to attend work during a strike or risk losing protection.

If you would like more information, please get in touch with a member of Brodies employment and immigration team. Workbox by Brodies users can find information on the current requirements at the pages on Industrial Action, including guidance on responding to industrial action and a checklist on balloting and notice. To find out more about Workbox, or to arrange a free online demo, please get in touch with the Workbox team.