The new law on minimum service levels during strike action - what employers need to know26/07/23
On 20 July 2023, The Strikes (Minimum Service Level) Act 2023 (the Act) received Royal Assent and came into force. The Act enables the implementation of minimum service levels (MSLs) in certain services during periods of strike action and 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.
In this Insight, we summarise the impact of the Act and what this means for employers.
The background to the Bill and a discussion of the proposals for change are set out in our 12 January 2023 insight, ‘Government plans to introduce minimum service levels in key sectors during strike action’.
These proposals are controversial and met significant opposition from the House of Lords on the grounds that they contravened both human rights and international law. The Lords tried to limit the impact of the Act on workers and unions and also to impose a legal requirement on the Secretary of State (SoS) to consult before making any MSL regulations. However, the House of Commons rejected each set of amendments and the Lords eventually allowed the Bill to pass to Royal Assent on 20 July 2023.
What has changed?
The Act came into force on the day it was passed (20 July 2023), but will have no immediate impact on strike action as the Act itself does not set MSLs. Instead, it gives the SoS the power to make regulations that set MSLs in respect of services that fall within health, education, fire and rescue, transport, border security and nuclear decommissioning.
Only after MSLs are set by the SoS, and a work notice subsequently issued by an employer, will the implications for non-compliant unions and workers take effect:
- 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’s next for MSLs?
The government has confirmed that it will now proceed with the implementation of MSLs for passenger rail services, ambulance services, and fire and rescue services. This follows consultations earlier in the year on MSLs in these sectors. However, no firm date has been given by the SoS for the publication of regulations containing MSLs in those sectors and the government has said it will respond to the consultations "in due course".
The government has said it will introduce a statutory code of practice “over summer” to provide further detail on how work notices will operate “over summer”. It will be introduced after being confirmed by both Houses of Parliament.
The Trades Union Congress has already indicated that they intend to use all options available to them to fight the Act. We are likely to see further challenges to this piece of legislation and any subsequent regulations which are made.
What to take away
The Act is now in force, but, on its own, has no effect on strike action. We will publish further guidance when we have further details of the Code of Practice and any specific MSL regulations.
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 Bill, please contact Andrew Rowland or Nicola Green.