The Government will introduce a bill to Parliament today

The Government will introduce a bill to Parliament today (Tuesday 10 January) to ensure that minimum service levels in certain sectors will be maintained during strike action.

The new measures will extend current proposals to ensure minimum service levels during strike action undertaken in critical public sector services.

The detail

Under the proposals, some trade union members would be required to continue working during a strike, even if they vote to take part in the action, and the strike is lawfully called via a properly constituted ballot process. The sectors covered by the plans are:

  • The NHS
  • Transport
  • Education
  • Fire and Rescue
  • Border Security
  • Nuclear decommissioning

In this respect, the proposals broadly mirror changes increasing ballot thresholds for industrial action, introduced in 2017.

It is not yet clear whether the legislation will dictate minimum staffing levels for specific sectors or employers. However, consultation is expected to take place shortly around what acceptable minimum service levels might look like in different contexts.

If the proposals become law, employers will be able to issue a 'work notice' detailing the type of workforce needed to maintain minimum service. It appears that individual employees or role-holders may be named.

It is proposed that employees named on the 'work notice' would lose their right to protection from unfair dismissal if they subsequently took part in strike action when required to work. A strike could be unlawful if a union does not take 'reasonable steps' to ensure that the specified workers do not strike, with employers potentially being able to obtain an injunction to prevent a strike taking place if the trade union fails to do this. This would be a significant departure from the current position whereby a properly conducted ballot affords blanket protection from dismissal to all strikers.

It is unclear to what extent employers will be obliged to negotiate with unions over minimum service levels. It is anticipated that parties will be expected to come to an agreement on minimum service levels during a strike period, with the Central Arbitration Committee (CAC) being given new powers to make determinations if no agreement can be reached.

Comment

These new proposals are not entirely unexpected. In December 2022, the Government introduced the Transport Strikes (Minimum Service Levels) Bill to ensure that minimum levels of service be provided by 'specified transport services' during strike action. When the bill was first announced, in October 2022, the Government indicated its intention to extend minimum service level requirements to health services and other areas of critical infrastructure.

However, the measures have already proved hugely controversial, sparking a furious reaction from unions and threats of legal action. Labour leader Sir Kier Starmer has stated that any such legislation would likely be abolished if his party were to win the next general election.

There are already Minimum Service Agreements (MSA)in place in many other European countries (such as France, Spain, Italy and Belgium) predominantly in the rail and transport sector. Usually, legislation requires employers and unions to agree the number and nature of staff who will remain at work during a strike.

Currently, in the UK, some employers agree MSAs with unions on an 'ad-hoc' basis when a strike is proposed. This is most common in manufacturing where agreements are usually focussed on preventing the shut-down of essential plant or equipment that would make return to work following a strike difficult or impossible (for example, if a production line shuts down). However, the new, proposed legislation appears to have a very strong health and safety focus. Reports suggest that the catalyst for the introduction of the new measures was the failure of ambulance unions to voluntarily provide a minimum service level during strikes in December.

It is important to note that any new legislation will not have an impact on the numerous strikes taking place this month (January 2023) which are likely to go ahead as planned.

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