The Strikes (Minimum Service Levels) Bill – Key Update

Towards the latter half of 2022, the UK saw an upshot in strikes in a number of
sectors. Key sectors striking included postal workers, rail workers, nurses and border
force agents – with more sectors planning to join the action in 2023. In response to
these strikes, on 10 January 2023, the Government introduced proposals for the
implementation of the Strikes (Minimum Service Levels) Bill.

This Bill allows the Secretary of State to implement minimum service levels to key
categories of workers in six public service sectors – health services, fire and rescue
services, education services, transport services, border security and those
responsible for nuclear installations and management. If a strike is set to take place
in any one of these sectors, the relevant employer can serve a work notice to the
trade union. A work notice would provide that minimum service levels, in terms of
staffing, must apply throughout the strike period.

A work notice requires certain people to work throughout the strike to ensure that
adequate levels of service are provided. There are time limits imposed on employers
for serving a work notice (dependent on when the strike was announced) and an
employer must have regard to a number of factors when deciding who to include in
the notice.

How has strike action impacted other businesses and employers?

The issues faced by employers and employees alike in the aforementioned sectors
as a result of strike action have been widespread. Recent transport strikes have
resulted in workforces facing disruption in their commute to their workplace.
Employers and businesses, particularly those within the hospitality sector, have been
faced with depleted workforces which has resulted in many being forced to close or
reduce opening hours on strike days, due to a lack of staff. Questions regarding pay
for staff who were unable to make it into their workplace due to strike action, or
disciplinary action taken against those who were unable to make it or were delayed,
have been raised and employers have found this uncertain and difficult to manage.
What does the Bill mean for employers and employees in the relevant sectors?
Currently, employers in the transport services sector have no way to ensure that a
minimum number of employees are working and that a level of service can operate
in a way which allows passengers (including those commuting to their place of work)
to continue to travel. The proposed Bill purports to change this and provide
employers with a statutory means of ensuring that their services can run at minimum
levels – even where trade unions are calling for strike action.

However, there has been a strong reaction against the Bill. It has been argued in
Parliament that the Bill goes too far, for instance because of the existing so-called
“life and limb” statutory provisions which are already in place during strike action,

which exempt certain categories of staff from strikes where there may otherwise be a
direct danger to any person. Under Section 240 of TULRCA, striking workers commit
a criminal offence if they endanger human life, cause serious bodily injury, or expose
valuable property to destruction or serious injury. Further, the right to strike is
enshrined in the European Convention on Human Rights (ECHR) and it has been
argued that the Bill means that workers, who may have democratically voted to
strike, can be forced to work and dismissed if they don’t comply.

Strike action would cease to be protected under TULRCA if a union which is given a
work notice by an employer then fails to take “reasonable steps” (the Bill gives no
guidance on what “reasonable steps” are) to ensure that all employees who are
identified in the work notice go to work as normal and do not take part in the strike. In
these circumstances, the employer would potentially be able to secure an interim
injunction against the union, preventing the union from calling its members out on
strike. Unions which breach these new requirements could face civil liabilities of up
to £1,000,000 for any unlawful industrial action.

Currently employees are protected from being dismissed in relation to participating in
strike action, in that such a dismissal will be considered automatically unfair.
However, under the Bill, if employees are named in a work notice (and therefore
should work as normal), ignore this work notice and go on strike, they will lose
protection from automatic unfair dismissal. Employers must still follow a full and fair
disciplinary process, however.

Employers engaged in the relevant services should keep up to date with the
upcoming Bill, which could have far reaching implications. Employers in other
sectors should continue to consider how to adapt their businesses to minimise the
impact of strikes, even with minimum service levels if the Bill goes forward. For
example, employees may struggle to travel into work with transport services strikes
even with minimum service. Employers should ensure that their policies are up-to-
date, especially policies focused on flexible working, have lines of communication
open for employee uncertainty over how strike action may impact them and ensure
their managers are properly trained to deal with any resulting disciplinary processes

If you are a business owner looking for advice on updating or drafting policies to
account for the strike action, or are an employee and need advice and/or assistance
on your rights under the proposed Bill, please do not hesitate to contact our
specialist employment team at or by telephone.

Please note that all information provided in this article has been provided as general
guidance only and all references to the law are in force at the time of writing.