The government has revised the statutory Code of Practice for trade unions outlining recommended “reasonable steps” for unions to take to comply with their obligations in relation to minimum service levels during strikes (MSLs) under the Strikes (Minimum Service Levels) Act 2023.
Background – Strikes (Minimum Service Levels) Act 2023
As explained in our Balancing Strikes and Services insight piece in September, where a sector is covered by the new law, once a trade union has given notice of strike action, the employer can consult the union and issue a “work notice”. The work notice will identify persons who are required to work and the work they are required to carry out to meet the MSLs. The notice should usually be issued seven calendar days prior to a strike day and is usually varied no later than four calendar days prior to the strike day.
Once a work notice has been issued, the union must take “reasonable steps” to comply with the work notice (in respect of any of that union’s members identified in the work notice). This is a key concept as failure to comply with the requirement to take “reasonable steps” would mean that the strike is not protected under the act, with potentially serious consequences for the union and for striking workers – loss of statutory protection from certain liabilities for the union, and loss of automatic protection from unfair dismissal or disciplinary action for union members.
What are “reasonable steps”?
An explanation of “reasonable steps” is not set out in the legislation, and therefore when read with other statutory codes on industrial action ballots and notices to employers, picketing and guidance on industrial action and the law, the Code of Practice is valuable in identifying the specifics of trade unions’ obligations.
The four recommended steps
The “reasonable steps” set out in the Code are recommended and should be considered by the union. However, additional or other steps may be required.
Having reviewed the consultation, four reasonable steps have been recommended, briefly:
- Step 1 (identification of members): identify the workers who are the union’s members in a work notice;
- Step 2 (encouraging individual members to comply with a work notice): send an individual “compliance notice” to those members identified, advising them not to strike during the periods in which they are required by the work notice to work and encouraging them to comply with the work notice;
- Step 3 (picketing): appoint and instruct a picket supervisor to use reasonable endeavours to ensure picketers avoid, as far as reasonably practicable, trying to persuade those identified members not to cross the picket line at times when they are required to work, notwithstanding the strike; and
- Step 4 (assurance): ensure they don’t undermine any steps they take to meet the “reasonable steps” requirement and swiftly correct actions by union officials or members which may do so.
Further details of what should be included in the compliance notices in step 2 are set out in paragraph 26 of the Code, along with a template compliance notice in Annex A (which is recommended but not required).
Changes from the original draft Code
Changes made from the earlier draft Code, published by the government following consultation, include the removal of the requirement for unions to send a communication to their wider members. It was envisaged that this would explain that a work notice had been issued and how it would impact the upcoming strike. Considering responses to the consultation, it was recognised that this may impose an additional burden on trade unions in terms of time and resources.
New consultation on prohibiting supply of agency workers during strikes
On 16 November 2023, the government launched a new consultation on the complete repeal of regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003. Regulation 7 prohibits an employment business from providing work-seekers to hirers to replace striking workers. This consultation is in response to the High Court’s decision in 2023 which quashed the government’s regulations revoking regulation 7 without consultation. Repeal of regulation 7 would enable employment businesses to supply agency workers to cover strikes in any sector, and agency workers to be supplied to hirers operating in relevant or important public services. It would not, however, prevent trade unions from calling strikes or affect the protections currently available to striking workers as it simply permits, but doesn’t require, agency workers to cover strikes. This consultation is due to close in mid-January 2024 and we can expect strong views on both sides of the debate given the practical, political and symbolic importance of regulation 7.
Ongoing controversy and what next?
The new anti-strike laws continue to be controversial and the government’s recent response to the consultation is unlikely to be the last word. The TUC held a special Congress on 9 December 2023 to discuss the next stage of its campaign against these laws. The TUC is highly critical of the Code of Practice, taking the view it places new duties on trade unions beyond the scope of the legislation and puts them the position of policing members on behalf of an employer. If Labour is elected in the next election, it has said that it will repeal the Strikes (Minimum Service Levels) Act 2023, including in a key vote at its Party Conference in October 2023.
