On 25 August 2023, the government opened a consultation on the draft statutory Code of Practice  (the Code) which sets out the ‘reasonable steps’ a trade union should take to be compliant with the Strikes (Minimum Service Levels) Act 2023 (the Act). The consultation gives all interested parties a chance to comment on whether the proposals ‘set out a clear and fair process for trade unions to follow to ensure members comply with a work notice’. The consultation closes on 6 October 2023.

In this insight, we summarise the content of the draft Code and what it means for employers if it is approved in its current form by Parliament.

Background

On 20 July 2023, the Act received Royal Assent and came into force. The Act enables the implementation of minimum service levels (MSLs) as set out in separate regulations and issued to unions via a work notice in certain services during periods of strike action. The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 to remove protections for unions and workers where workers do not comply with the MSLs set out in a work notice. For further information on the Act see our insights - ‘Government plans to introduce minimum service levels in key sectors during strike action’ and ‘The new law on minimum service levels during strike action - what employers need to know’.

To date, there are no draft regulations setting out any proposed MSLs, but we understand that the government intends to publish the first round of MSL regulations this month.

Once any MSL regulations come into force, and a work notice is subsequently issued by an employer:

• trade unions, which fail to take reasonable steps to ensure that their members listed in the work notice do not go out on strike, will lose their immunity from liability in tort under section 219 of TULRCA
• workers who go out on strike instead of complying with the work notice, and who are dismissed as a result, will not be able to claim that the dismissal is automatically unfair.

What does the Code say?

The Code sets out five steps that trade unions should follow if they are seeking to satisfy the requirement to take reasonable steps to help ensure their protection from liability in tort is maintained.

The five steps are:

• identification of union members who are the subject of the work notice
• encouragement of named members to comply with the work notice through the use of a “compliance notice” (and there is a template notice in the Code)
• notification to members who aren’t named in the work notice through the use of an “information notice”(and there is a template notice in the Code)
• guidance for picketing (to seek to avoid named members being encouraged not to cross the picket)
• an “assurance” step to try to avoid any action from individual officials or members which undermine the reasonable steps taken by the union.

What to take away

The steps in the Code, although prescriptive, are not onerous. The reasonable steps requirement does, however, give employers another means to challenge the unions’ approach to industrial action (but only when the MSL regulations and the Code come into force).

We anticipate that contentious issues between employers and unions on compliance will be in relation to whether the reasonable steps have been taken by the union ‘as soon as reasonably practicable’ and whether the notices issued include the specifics set out in the Code. Where disputes cannot be resolved between the parties, ultimately, it is for a court to decide if a union has complied with the reasonable steps requirement when looking at all the circumstances of the case. Whilst a failure to observe the Code does not, by itself, make any person liable to legal proceedings, any provisions of the Code are admissible in evidence and taken into account in proceedings before any court or employment tribunal where relevant. It remains to be seen how the courts will approach this issue.

Finally, it should be noted that the Code states that the notices ‘should be sent by electronic means, such as email, where possible’.

We will publish further guidance when we have details of the final Code of Practice and any specific MSL regulations.

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 Act or the Code, please contact Andrew Rowland or Nicola Green.