On 19 September 2023, the government opened a consultation on the proposal to introduce minimum service levels (MSLs) during strike action in the “most essential and time-critical hospital services”.

The consultation gives all interested parties a chance to comment on

• whether hospital services should be covered and, if so, which hospital services
• the appropriate minimum service levels required 
• whether any health services outside hospitals should be included.

The consultation closes on 14 November 2023.

In this insight, we summarise the proposals and what they may mean for employers of staff working in hospital services, if they go on to become law.

Background

On 20 July 2023, the Strikes (Minimum Service Levels) Act 2023 Act (The Act) received Royal Assent and came into force. The Act enables the implementation of MSLs as set out in separate sector specific regulations and issued to unions via a work notice during periods of strike action. The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 to remove protections for unions and workers where workers do not comply with the MSLs set out in a work notice.

For further information on the Act see our previous insights:

• Government plans to introduce minimum service levels in key sectors during strike action
• The new law on minimum service levels during strike action - what employers need to know
• https://www.capsticks.com/insights/minimum-service-levels-during-strike-action-the-proposed-reasonable-steps-code-of-practice.

Once any MSL regulations come into force, and a work notice is subsequently issued by an employer:

• trade unions which fail to take reasonable steps to ensure that their members listed in the work notice do not go out on strike, will lose their immunity from liability in tort under section 219 of TULRCA
• workers who go out on strike instead of complying with the work notice and who are dismissed as a result, will not be able to claim that the dismissal is automatically unfair.

What are the MSLs being proposed?

It is proposed that on a strike day, hospitals will treat people who require urgent or emergency treatment and are not yet well enough or able to be discharged as they would on a non-strike day.

In terms of what this MSL for ‘urgent and emergency services’ might look like, for short periods of action (24 hours or less), it is suggested that service provision might look similar to what is usually available on a Sunday. 

However, this is not a hard and fast rule and would need to be adjusted for a longer period of strike action, where the following should be taken into consideration:

• that ‘clinically significant’ and ‘time critical’ services are still available so patients are not put at risk of losing life or of life-changing harm by interrupting the clinical treatment pathway
• the relevant supporting services run by hospitals to ensure that the MSLs operate safely and effectively
• the cumulative impact of strike action on those services
• whether more than one union is involved in strike action.

What to take away

NHS organisations may welcome the setting of MSLs in hospital services during strike action, given the uncertainty they have faced, and continue to face, in trying to agree and operate safe service levels during the periods of strike action by nurses, junior doctors and consultants in particular. However, as critics of the plans have already noted, questions remain about how effective the MSLs will be in practice.

The consultation proposes that “the leadership of each hospital would need to determine how many staff, in which professional groups, they would need to appropriately manage these time-critical services during the proposed industrial action, to determine how many people would need to receive a work notice.” This suggests that it is not intended that any MSL regulations for hospital services will be prescriptive.

Although the Act does not require the employer and the union to agree before a work notice can be issued by the employer, it does require consultation to have taken place.

The consultation recognises that NHS organisations may not employ all the staff who are essential to the treatment provided by hospitals. As only the employer of the striking staff can issue a work notice under the Act, the consultation is also seeking views on whether the MSL regulations should cover some or all organisations that provide services for or on behalf of hospitals. This would mean that employers whose staff and their unions are not directly involved in the dispute would be given the power to issue work notices. However, it is not made clear in the consultation how it is intended that this would work in practice.

We will publish further guidance when the outcome of the consultation and any specific MSL regulations are published.

How Capsticks can help

Capsticks has been supporting employers and national organisations during the recent industrial action in the health sector. For further information on the Act or the consultation, please contact Andrew Rowland or Nicola Green.