In this insight we summarise the changes and the potential impact for employers.

The proposals for change

On 10 January 2023, the Government presented The Strikes (Minimum Service Levels) Bill (the Bill) to Parliament. It could take several months for the Bill to progress through Parliament, with the second reading due to take place next week.

If approved as drafted, the new legislation will mean that:

• The Secretary of State has the power to make regulations regarding MSLs in respect of services that fall within health, education, fire and rescue, transport, border security and nuclear decommissioning.
• Regulations made under the Bill can apply to any strikes that are due to take place after they come into force, even if notice of the strike was given, or the ballot in respect of the strike was concluded, on or before that day.
• Employers in the listed services may issue a work notice which identifies the persons required to work during a strike and the work required to be carried out in order to ensure the MSLs are met.
• Employers must consult with unions before giving a work notice and have regard to the views expressed by the union.
• If the relevant trade union fails to take reasonable steps to ensure that its members listed in the work notice do no go out on strike, it will lose its immunity from liability in tort under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992.
• Workers who go out on strike instead of working as required to comply with the work notice, and who are dismissed as a result, will not be able to claim that any dismissal is automatically unfair.

These proposals are part of a series of steps taken by the Government in relation to industrial action:

• the repeal in July 2022 of the ban on the use of agency staff to replace striking staff during industrial action (this is subject to judicial review proceedings by various trade unions, due to be heard in the High Court in March 2023)
• the increase in the maximum damages that courts can award against a union from £250,000 to £1 million, when strike action has been found by the court to be unlawful
• the introduction of the Transport Strikes (Minimum Service Levels) Bill on 20 October 2022 (albeit that that Bill has not been progressed since).

Points to note

It is not entirely clear how the new powers will work in practice and the current version of the Bill raises a number of questions:

What are MSLs?

The Bill does not define MSLs. However, this may change as the Bill progresses through Parliament.

The Government has announced that it will first consult on MSLs for fire, ambulance, and rail services and hopes not to have to use these powers for other sectors included in the Bill, such as other health services.

In the announcement made when the Bill was published, the Government stated that voluntary agreements about staffing levels between employers and unions should always be the first approach to the provision of services when there is strike action.

However, the Bill provides the Government with the power to step in and set MSLs should it decide that they are needed, which then provides employers with the ability to issue a work notice.

Subject to any changes as it progresses through Parliament, the Bill gives the Secretary of State a full and final power to decide:

• if and when MSLs should be set
• who should be consulted
• when they should be consulted
• the MSLs that are set.

What difference will these changes make?

Agreements have already been reached nationally and locally between employers and unions during the current wave of industrial action in the healthcare sector on derogations and responses to critical incidents on strike days, to try to ensure safe levels of service.

However, MSLs provide the Government with a means to impose a fall-back position if it considers they are needed (such as in circumstances where voluntary agreements cannot be reached in future or are difficult to maintain).

Are these powers lawful?

Unions have already stated that they will seek to challenge the Bill, if passed.

One of the grounds of challenge will be that it is in breach of Article 11 of the European Convention of Human Rights (the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of their interests).

The Bill is certainly controversial and is likely to be the subject of heated debate as it makes its way through Parliament. We will provide further information on the Bill’s progress over the coming weeks.

How Capsticks can help

Capsticks has been supporting employers and national organisations during the recent industrial action in the health sector. For further information on the Bill, please contact Andrew Rowland or Nicola Green.