In our last update, we wrote about the Strikes (Minimum Service Levels) Act 2023 (the “Act”) and its impact on employers, unions and employees. Since then, some steps have been taken on the back of the Act’s introduction and resistance to the Act has increased.

Work notices

A “work notice” is a notice issued by an employer in response to a union’s strike plans in which it sets out what work needs to be done and by whom to ensure that minimum service levels (MSL) are maintained during strike action. Work notices can only be used in the context of services covered by MSL regulations.

In November, the Department for Trade and Business published lengthy non-statutory guidance for employers on the issuance of work notices. The guidance sets out the steps employers, trade unions and workers should take in relation to issuing work notices. For example, a notice must not include more workers than are reasonably necessary to provide the MSL specified in the applicable regulations. The guidance also includes the necessary steps for producing a work notice and the duties on workers and trade unions once a notice has been issued. The guidance states that courts and tribunals may choose to consider the views in the guidance “where they consider them relevant.”

Reasonable steps

The Act requires that, once a work notice has been given to a trade union under the Act, the trade union(s) must take “reasonable steps” to ensure compliance with work notices – but the details of such “reasonable steps” are not set out in the Act. The Department for Business and Trade has now published a Code of Practice for use by trade unions on these “reasonable steps.” The Code does not impose new legal obligations, but provisions of the Code are admissible in evidence and can be taken into account in court or tribunal proceedings where relevant.

Four steps for trade unions are laid out in the Code of Practice: (i) identify members subject to the work notice; (ii) encourage individual members to comply with the work notice by issuing a compliance notice; (iii) appoint a picket supervisor ahead of any picketing; and (iv) ensure that other things are not done by the trade union that undermine the steps they have taken to meet the “reasonable steps” requirement.

The requirement to take reasonable steps does not mean that the union is required to ensure a MSL is achieved. However, if a union fails to take reasonable steps to ensure that all union members identified in a work notice comply with it, then the provisions of the Strikes Act mean that the strike will not be protected. This means that employees taking part in the unprotected strike action lose their automatic unfair dismissal protection under the Trade Union and Labour Relations (Consolidation) Act 1992 (often referred to as “TULRCA”).

Further, where an employee identified in a work notice (whether they are a union member or not) nevertheless goes on strike, they will lose the automatic unfair dismissal protection if they are in breach of the work notice. This is the case even if reasonable steps are complied with.

Alongside this, the maximum damages that courts can issue against a union for unlawful strike action has increased from a maximum of £250,000 to £1 million for the biggest unions.

Criticism and backlash

The government is pressing ahead with using the relevant Secretary of State powers in the Strikes Act to impose MSLs across particular services/sectors but we’ll have to wait and see how this unfolds given the significant backlash that is developing.

On December 8, the first regulations came into force introducing MSLs in passenger rail, NHS ambulance and NHS passenger transport services. These regulations have immediate effect so it will be interesting to see how these new MSLs play out amongst the ongoing rail network disputes. On December 12, regulations also came into force for those working in border security and passport services. It is anticipated that further MSLs will be introduced in other sectors, including education, in the coming months. 

Naturally, trade unions have rebuffed the move. The Trades Union Congress (TUC), which is a federation of trade unions across England and Wales, has called a special congress meeting to discuss the Strikes Act and its general secretary has described the new laws as “draconian” and “spiteful”, saying: “These new Conservative anti-strike laws are unworkable, undemocratic and likely in breach of international law.” Meanwhile, the Labour Party has said that it will repeal the Strikes Act within the first 100 days of its government if it wins the next general election.

Concerns have also been raised by the Joint Committee on Human Rights about the tension between the Strikes Act and the right to freedom of assembly and association guaranteed by Article 11 of the European Convention on Human Rights.