Trade Union Round-Up ' The Government Strikes Back (Or Does It?)

• Published date: 06 September 2023
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Mr Philip Cameron

• Strikes and other forms of industrial action in the UK continue to be front-page news.
• This Insight discusses two legislative developments that seek to prevent or mitigate the effects of these work stoppages.

Strikes and other forms of industrial action by employees wanting more pay and better working conditions across a range of sectors including rail, education, and health have continued to be front-page news. This industrial action has had national impact, leading to increased wait times for medical appointments in the National Health Service and huge rail disruption.

The government has been talking tough about all this industrial action. With an election looming in the next year or so, it is understandable that the government might be keen to be seen to be taking action.

In this article, we discuss two legislative developments that have been introduced to either prevent or mitigate the effects of industrial action. However, as we will see, this tough approach has been (and may continue to be) subject to some serious challenges.

• First, new legislation has been made to prevent strikes in certain sectors from resulting in a total shutdown of services through the introduction of minimum service levels.
• Second, last summer, the government legislated to allow businesses to use agency workers to cover those on strikes (and other industrial action) to allow for continuity of service. This has recently been struck down by the courts.

The Strikes Act

The Strikes (Minimum Service Levels) Bill (we previously reported on earlier this year) received Royal Assent on July 20, 2023 (the "Strikes Act"). The Strikes Act has been introduced to ensure that minimum service levels (MSLs) are maintained during strikes in key sectors in order to "ensure the safety of the public and their access to public services" (see government announcement). The Strikes Act does not extend to industrial action short of a strike such as work to rule¹ or an overtime ban.

The Strikes Act allows the Secretary of State to make regulations setting out MSLs for strikes in "relevant services." Those relevant services are health, transport, education, fire and rescue, border control, and nuclear decommissioning and radioactive waste management services. The Secretary of State must, however, consult before bringing in any such regulations. Consultations on MSLs in relation to ambulance, fire and rescue, and passenger rail services were launched in February 2023 and closed in May 2023. The government has said it will respond to these consultations in due course.

So, how does the Strikes Act impact employers, unions and employees?

• Work Notice: Where a union...