UK Government publishes ‘minimum service levels’ Code of Practice

The Government has published its response to the consultation on a statutory Code of Practice on the reasonable steps that a trade union should take in order to comply with its obligations in relation to minimum service levels during strike action. An amended Code will now be laid before Parliament and, subject to Parliamentary approval, is expected to come into force in mid-December. In addition to the Code, the Government has also laid down a series of extensions to the Strikes (Minimum Service Levels) Act 2023 to cover some additional sectors - passenger rail services, border security and NHS ambulance services. 

A reminder. The Act, which received Royal Assent in July, empowers the government to make regulations to impose minimum service levels to be delivered in a number of the UK economy at times of strike action. The effect of the legislation is to restrict the protection enjoyed by trade unions and their members when they engage in strike action. Employers will be able to issue trade unions with ‘work notices’ that set out which trade union members in their workforce will be expected to work, and what work they must do, in accordance with the minimum service levels set during times of strike action. Trade unions and individual members will lose statutory protections if they fail to comply.

The Government consulted between August and October 2023 on a draft statutory Code of Practice on the reasonable steps that a trade union should take to comply with the new laws The draft Code originally set out five practical steps that unions should take to help facilitate minimum service levels but in light of the consultation the Government has dropped one of them, namely the requirement for unions to send a communication to its wider membership explaining that a work notice has been issued in relation to upcoming strike action and how that notice will affect the strike. The Government has taken the view that would have been too burdensome on unions in terms of time and resources and was less important than the other steps. That leaves four steps which are: 

Step 1: identification of members – unions should identify their members in a work notice, albeit observing data protection laws
Step 2: encouraging individual members to comply with a work notice – unions should send an individual communication or ‘compliance notice’ to each member identified in a work notice to encourage them to comply with the work notice and not to strike
Step 3: picketing – unions should instruct the picket supervisor or another union official or member to use reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified in a work notice not to cross the picket line when they are required by the work notice to work
Step 4: assurance – unions should ensure that they do not undermine any of the steps that they take and correct actions by union officials or members which may also undermine the reasonable steps. 

Tweaks were made to each of those four steps as a result of feedback from the consultation and the net effect is to make life slightly more comfortable for unions to operate in practice. For example, on the compliance notice, the Government is no longer insisting unions use the draft template notice that appears in the Code. Instead unions are being recommended to use it but they are not required to do so. Also, on picketing, the Government has switched the focus from a positive obligation to encourage named individuals to attend work, to a negative one making clear that those on the picket should refrain from encouraging those named on a work notice to strike at times when they are required by the work notice to work. 

Notwithstanding those changes, overall the code amounts to a serious undertaking for trade unions in terms of compliance with the reasonable steps requirements. As Personnel Today reports, the TUC are very unhappy with this and describe the code as a whole as “unworkable” with the timescales placed on union officials as being “totally unrealistic”. A spokesperson told Personnel Today that the government was “setting unions up to fail”.

So let’s get a view on this. Earlier Diane Nicol joined me by phone from Glasgow to discuss the draft code and numerous duties placed on both employers and trade unions. First question, how will this impact on trade unions: 

Diane Nicol: “The bottom line is they will have to get to grips with this very detailed Code of Practice, legislation, and regulations, in a way that they had to with the balloting provisions which led - and we've all seen this - to countless injunction applications by employers some of which were successful. If you remember the BA strike where the union actually wrongly identified lots of people who had left and who were being made redundant and that stopped a very big strike in its tracks. So, I can see that there will be lots of disputes around this and the unions will also have to try and control their pickets through the picketing supervisor because if the pickets tried to stop individuals from working who are under a work notice, then the union and the pickets will be in trouble.”

Joe Glavina: “As it stands, if a union thinks the employer’s work notice is too wide their only option is to challenge it and that involves putting themselves at a significant risk of being sued. So, it’s heavily weighted against the trade unions isn’t it?” 

Diane Nicol: “Well, I think that's why the TUC has come out and said this is an awful piece of legislation and they're calling their members, as the Fire Officers Union has done, to have civil disobedience in response to it. The unions and the TUC really don't like this but, of course, Labour  have undertaken, if they do get into power, to repeal this legislation in the first 100 days, but certainly for the unions and the workers, it's very high risk. If you’re a big union like Unite it could be a million pounds of damages or, alternatively, as I said before, injunctive proceedings to stop the strike in its tracks and there's lots of money and legal fees, obviously, involved in that. So, the steps that they have to take are quite considerable and the teaching and the learning of the shop stewards, those on the ground. The other thing is there's an assurance requirement where if a shop steward or another union official goes off on a frolic of their own the union will have to take steps to stop that happening and that’s very difficult for the unions to control. So, I would say a very onerous piece of legislation for the unions and their workers and not fantastic for the employers either, but much better for them, and much better for the public at large, which is what the government is trying to address, and also the economy to try and stop the massive impact of these strikes where we've lost 4 million days since June 2022.”

Joe Glavina: “Given the risks the unions face if they get this wrong do you think one of the knock-ons for from this legislation might be that we see much more action short of a strike and leverage campaigns, perhaps?”

Diane Nicol: “Yes I do, because one thing that we always have to remember about strike action is that the employees don't get paid and the unions have to pay them a minimum amount per day which is not enough with this cost-of-living crisis and the economy that we currently have. So, I do think we will see more of those. But what I would say is this, I think that the approach to industrial relations in the UK is slightly broken and whether anti strike legislation is the right solution is questionable. I think lots of employment lawyers, employers, unions, alike, there must be a better way to try and resolve industrial disputes and whether it is Acas becoming much more proactive, or some sort of other mediator, I think we need a different solution because it's not working. We're losing millions, billions, in relation to these strikes, workers are not being paid, unions are unhappy, employers are unhappy. It's not a very positive landscape out there.”

Joe Glavina: “This is public sector focused and our clients are mainly in the private sector so how much of an impact will it have on them?” 

Diane Nicol: “Well, in reality, for example, if you take transport and the rail strikes that impacts our clients because the employees can't get to work, and there has been a material return to the office, for example. Also, our private sector clients will often be involved with public sector employees, whether it's through contracts or whatever, and it inhibits them from doing the job they have to do and, obviously, it impacts on the economy in general, which is negative for the clients.”
On the timescale for all of this the Government plans to bring into force the new regulations and the new Code this side of Christmas, subject to approval by both Houses of Parliament. On Thursday last week the government also published separate, non-statutory guidance on the issuing of work notices in relation to minimum service levels. That’s the notice employers will be able to issue to specify which employees will be required to work during strike action to ensure that the minimum service level set for their sector can be met. We’ll have further comment on that shortly. Meanwhile, we have included links to that guidance and to the Minimum Service Levels Code in the transcript of this programme for you.

LINKS
- Link to Government response to the Minimum Service Levels: Code of Practice on 'reasonable steps' consultation 
- Link to Government guidance: Minimum Service Levels: issuing work notices, a guide for employers, trade unions and workers