Minimum service levels - what are they and what does the future hold?

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Author: Paul McFarlane

In July 2023, the Strikes (Minimum Service Levels) Act 2023 came into force. This legislation gives the Government the power to make regulations to introduce minimum service levels (MSLs) where strikes take place in "relevant services". To date, MSL regulations are in place for passenger rail, ambulance, border control, and fire & rescue services, with regulations awaited for key hospital, education and nuclear decommissioning and radioactive waste management services.

We answer practical questions that employers in relevant services may have about this change to the law and how it may impact them.

How does the MSL process start?

If a union issues a valid strike notice, employers may, having first consulted the union, give it a "work notice", which must identify:

  • the workers that are required to work, which must be no more than are "reasonably necessary" to fulfil MSLs; and
  • the work they are required to do.

Government guidance on issuing work notices (see below) recommends that employers should keep a record of their methodology for identifying the work and the workers required in a work notice. Section 3.2 of the Work Notice Guidance contains a useful flowchart of the steps employers should take to produce a work notice.

The Government is proceeding to consult and roll out regulations in the remaining sectors to which MSLs can apply. However, at a Special Congress of the TUC General Council convened in December 2023, the TUC called for the repeal of the MSLs legislation to be part of an Employment Bill in the first 100 days of a Labour Government.

Do employers have to notify individual workers of the requirement to work?

Although the legislation does not explicitly require employers to inform affected employees that they are required to work under a work notice, there are important consequences if an employer fails to do so. The Government's guidance suggests as a matter of good practice that employers should do so as:

  • this will help the worker to understand what is expected of them and help the employer provide the MSL on strike day(s); and
  • workers will lose their protection from automatic unfair dismissal for industrial action only if they:
    • are an identified worker in the work notice; 
    • have also been given an individual notice in writing by the employer; and
    • do not comply with the work notice and instead take part in the strike.

Government guidance on work notices - its status and how will it be used?

The Government guidance (Minimum Service Levels: Issuing work notices, a guide for employers, trade unions and workers) is non-statutory guidance. This means courts and tribunals may choose to consider its content where relevant, although ultimately it is not binding. Nevertheless, as set out below, there are practical issues that employers need to consider when seeking to use MSLs that are covered in the Government guidance.

For employers in passenger rail services, the Government has issued supplemental guidance.

Must an employer issue a work notice?

In short, no. Employers are not under any statutory obligation to issue a work notice to a union in response to a valid strike notice.

Employers will therefore need to weigh up whether or not to do so. The Government guidance suggests that employers should consider their existing legal duties and obligations, for example contractual requirements or public law duties. The guidance goes on to suggest that other considerations include:

  • whether or not the employer can achieve the MSL without issuing a work notice;
  • attendance levels during any previous strike action;
  • circumstances that may affect the delivery of the MSL, including expected level of demand for the service, and the location and timing of the strike;
  • the duration of the strike; and
  • any voluntary agreements with the union that provides for MSLs during strike days.

What consultation do employers need to carry out before issuing a work notice?

Before issuing a work notice, the employer must consult the union about:

  • the number of workers to be identified; and
  • the work to be specified in the work notice.

Consultation may, for example, be via email exchange or a face-to-face meeting. The Government guidance suggests the employer should share the information relating to the consultation initially in a written format, and preferably electronically, due to time constraints and for ease of record-keeping.

While employers are not obliged to agree with the union's response, they are under a duty to "have regard to any views expressed by the union".

When does consultation need to start and end?

The legislation does not prescribe when the consultation must start and end. However, in practice, employers will need to start consultation with the union as soon as possible to ensure compliance with work notice time limits.

What are the time limits for issuing a work notice?

Unions must give employers a strike notice no later than 14 days before the first day of the strike, and the employer has to issue a work notice no later than seven days before the strike day (unless employer and union agree a later day). This means that if the strike is due to start on (say) a Thursday, the work notice must be given no later than the previous Thursday.

Employers do not need to produce a new work notice for each strike day. The Government guidance provides that "a work notice may be produced and issued for each day that a strike takes place, or to cover several strike days (including continuous or non-continuous strike days), or the entire period to which the notice of strike action relates". However, an employer must still provide seven days' notice to the union prior to the first day to which the relevant work notice applies.

Where a union gives a strike notice on the last possible day, this allows the union only a short period to consider the proposed number of workers and work specified in the consultation, to express its views in response, and for the employer to consider the response, prepare the work notice and issue it to the union.

The Government guidance suggests that if the union does not respond substantively to the consultation by a date and time reasonably set by the employer, the employer can continue to issue the work notice.

Can an employer vary the work notice?

Yes, employers may vary a work notice before the end of the fourth day before the strike date (or before the end of any later day agreed with the union).

However, before varying a work notice, employers must consult the union about the variation as before.

What happens to unions/employees that do not comply with a work notice?

A union that fails to take reasonable steps to ensure compliance with a work notice may be sued for damages and lose its ability to apply for injunctive relief.

The Government has published a code of practice on how unions can seek to comply with the above reasonable steps requirement.

Depending on the circumstances, workers (including those not named in a work notice and who strike) may lose their protection from automatic unfair dismissal.

What can employers do to prepare for strikes?

Given that there will usually be limited time for employers to prepare and consult on a work notice once a union has given notice of a strike, the Government guidance recommends that employers prepare in advance, where possible. Depending on the circumstances, preparation may include:

  • developing an approach to identifying workers and the work required;
  • developing the process for preparing and issuing a work notice; and
  • discussing the consultation process with the union.

Another reason the guidance suggests discussing the consultation process with the union is that this may help to demonstrate that the employer's process is clear and fair, build trust, and reduce tensions and disputes during any subsequent dispute. It may also help to demonstrate that the employer is not taking into consideration a worker's union membership or related activities when creating a work notice.

The guidance also recommends that employers should discuss the type and format of data to be shared in a work notice with the union, to ensure that the union can access and process the data, and that it can use that information to identify its members.

The future of MSLs

It is still relatively early days since the MSLs legislation took effect in certain services and its effects have not yet been seen. In the Government's impact assessment of the legislation, it identified a risk that the legislation could lead to greater use of other forms of industrial action short of a strike in relevant services where MSLs are imposed. 

In the meantime, the Government is proceeding to consult and roll out regulations in the remaining sectors to which MSLs can apply. However, at a Special Congress of the TUC General Council convened in December 2023, the TUC called for the repeal of the MSLs legislation to be part of an Employment Bill in the first 100 days of a Labour Government. The Labour Party itself has also committed to the repeal of this legislation if elected, but has not given a timeframe for this.

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