The Strikes (Minimum Service Level) 2023 — striking a balance for safe services, or not?

Following a number of high profile strikes, most recently affecting healthcare and rail services, The Strikes (Minimum Service Level) 2023 Act received Royal Assent on 20 July 2023 and has the power to significantly inhibit future strike action across key services.

Prior to the enforcement of the Act, trade unions and workers had the benefit of protections afforded by the Trade Union and Labour Relations (Consolidation) Act 1992. In effect, there was little that could prevent widespread industrial action leaving key services short staffed, causing widespread disruption and, at worst, putting the public at risk.

The Strikes (Minimum Service Level) 2023 Act does not prevent strike action but seeks to ensure services remain useable and safe by virtue of requiring adherence to minimum service levels (MSL). Under the Act the Secretary of State can set minimum service levels expected of key services, including healthcare, transport, education, fire and rescue, border security and nuclear decommissioning, and nuclear waste management. Currently, further regulations and the creation of a Code of Practice are required before the Secretary of State can set the minimum service levels, and these discussions are likely to take place this year and beyond.

The Act provides powers for employers, following mandatory consultation with the union intending to strike, to issue “notices” identifying workers precluded from striking and to set out the duties and services which must be maintained and performed. The notice will set out the reasonable steps that must be taken to meet the MSL.

Trade unions and workers failing to adhere to minimum service level notices risk being liable for losses previously protected under the Trade Union and Labour Relations (Consolidation) Act 1992 and restrictions to unfair dismissal rights, respectively.

The TUC have confirmed they will seek the challenge the new legislation and it is likely there will be protracted legal arguments over coming months. Trade unions will be galvanised by their recent success in challenging the Government’s Conduct of Employment Agencies and Employment Businesses (Amendment) Regulation 2022 which had allowed for agency workers to be used to fill in for striking worker.

A number of questions also remain, including whether the Act only encompasses public bodies , or whether private providers are also caught by the legislation. The latter would have extremely widespread consequences across all sectors. Also, the interpretation of what constitutes “reasonable steps” to ensure safe minimum service levels and, indeed, what is a safe minimum service level will inevitably be divisive and contentious. Curiously, disruptive industrial action which falls short of “striking” is not within the scope of the legislation so there is potential for unions to act more creatively to cause significant disruption to achieve their goals.