On 25 August 2023, the Department for Business and Trade (DBT) published Consultation: Code of Practice on reasonable steps, which seeks views on a draft statutory Code of Practice on the reasonable steps a trade union should take to comply with minimum service levels (MSLs) under the Strikes (Minimum Service Levels) Act 2023. The Act, which came into force on 20 July 2023, creates a framework for providing MSLs during periods of strike action in six key sectors – healthcare, fire and rescue, education, transport, border security and the nuclear industry – through amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) (see FC Feature 20 July 2023). The government consulted on proposed MSLs for passenger rail, ambulance and fire and rescue services in Spring 2023 and has issued a further consultation in respect of border security (see FC Feature 14 August 2023).
The new Act empowers the Secretary of State to specify MSLs in relation to the six key sectors through further regulations. Where a trade union gives notice to an employer of strike action relating to a specified service, the employer may issue a work notice identifying workers who are required to work during a strike. The DBT notes that s 234E TULRCA 1992 requires a trade union that has been given a work notice to take reasonable steps to ensure that all members of the union identified in the notice comply with it, so as to maintain protection (under s 219 TULRCA 1992) from certain liabilities in tort.
The draft Code of Practice gives practical guidance to trade unions on how they can comply with their obligation to take reasonable steps to ensure those members identified in a work notice comply with it and do not take strike action. It is intended to provide a clear and fair process for trade unions to follow consistently, as well as clarity for employers and union members on what to expect prior to and during strike action. The draft Code sets out the following five steps unions should consider once they have received an MSL work notice:
- identifying their members specified in the work notice;
- encouraging identified members to comply with the work notice by sending each individual a 'compliance notice';
- sending an 'information notice' to the wider membership to inform them that a work notice has been given to the union and that some members are required to work;
- instructing picket supervisors to take reasonable endeavours to ensure that identified members are not encouraged to take strike action by those on the picket line; and
- ensuring that the union does not undermine any of the reasonable steps that it takes.
Templates for compliance and information notices are annexed to the draft Code of Practice.
The consultation closes on 6 October 2023, after which the government will analyse and consider responses before publishing the final version of the Code in due course. The Code will be issued under s 203 TULRCA 1992 and laid before Parliament when time allows. The government will also make consequential amendments to the Picketing Code under s 205 TULRCA 1992 to reflect changes made by the new Act.
See Unfair dismissal, Q&A here for whether it is automatically unfair to dismiss an employee taking part in official industrial action. For more information about trade unions generally, see Trade unions.
First published on the Employment News Service on 25 August 2023.
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