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Minimum Service Levels - Government publishes response to consultation and updated Code of Practice on 'reasonable steps'

on Friday, 24 November 2023.

Following its recent consultation, the Government has published an updated Code of Practice on the 'reasonable steps' trade unions will be required to take to comply with the Strikes (Minimum Service Levels) Act 2023.

The Act

Following a controversial passage through Parliament, the Strikes Act is now in force. It allows the Government to set minimum services levels in "relevant services", including education, health, and fire and rescue. These minimum service levels must be preserved during periods of strike action. In order to preserve these minimum service levels, affected employers will be able to issue "work notices" to require certain workers to refrain from taking strike action. Unions must take "reasonable steps" to comply with a work notice.

Code of Practice

A draft Code of Practice was published earlier this year, outlining the "reasonable steps" unions should take in order to comply with the Act. The Code of Practice is an important document, as the Act itself does not explain what action the unions must take in response to the issue of a work notice. It is important that such action is clearly set out, as failing to comply with a work notice would mean a strike would not be protected in law. Without the requisite legal protection, the union would lose immunity from tortious liability, and individual employees would not be protected from unfair dismissal as a consequence of taking part in the strike.

Consultation response

The original draft Code of Practice proposed that there were five "reasonable steps" a union should take to comply with a work notice. These included a requirement to send an information notice to all union members explaining that a work notice has been issued and its impact on the strike, and a separate requirement for picket supervisors to take reasonable endeavours to ensure members identified in the work notice are not encouraged to strike by those picketing. These were the two steps that attracted the most criticism in the consultation responses. As a result, some amendments have been made to the draft Code and a final version has now been published.

The requirement for unions to communicate with all members on the work notice has been removed. The obligation in relation to picketing has also been amended so that picket supervisors will be required to make clear those picketing should refrain from encouraging workers named on a work notice to strike. The Code now also stops short of requiring picket supervisors to encourage workers named on a work notice to attend work.

Next steps

The updated Code of Practice will now be laid before Parliament for approval and is expected to come into force in mid-December.

The Government has also introduced regulations to implement minimum service levels in rail, border security and NHS ambulance and patient transport services. These are expected to come into force after the Code of Practice. The Government has also written to education unions with a view to voluntarily setting minimum service levels for the education sector, and has said that draft regulations will be introduced if a voluntary agreement cannot be reached.

For more information, please contact Sian Knight-James in our Employment team on 0117 314 5331, or complete the form below.

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