Since publishing our Balancing Strikes and Services insight piece in September, the government has announced the introduction of Minimum Service Levels (MSLs) regulations for ambulance, rail and border security staff during strike action. It is expected that MSLs will also be introduced for education, other NHS staff and fire services in due course.
Background
The Strike (Minimum Service Level) Act 2023 (the Act) received Royal Assent on 20 June 2023, with the aim of “balanc[ing] the ability to strike with the rights and freedoms of others to access key public services during periods of strike action.”
The Act enables government to specify MSLs for six key sectors, including health services, fire and rescue services, education services, transport services and border security.
MSLs for ambulance, rail and border security workers
It is intended that MSL regulations covering rail workers, ambulance staff and border security staff will be laid before parliament ahead of Christmas with the stated aim of ensuring that vital public services continue to run during this period and beyond.
The Press Release highlights that the legislation will bring the UK into line with countries such as France, Italy, Spain and the US where certain public services must continue to be provided during strikes. The press release goes on to say that the MSLs are designed to be “effective and proportionate by balancing the ability to take strike action with ensuring that [the UK] can keep [its] borders secure, supporting people to make important journeys including accessing work, education and healthcare, and allowing people to get the emergency care they need”.
The following MSLs are expected to be introduced by the end of 2023:
- Border security: Services should be provided at a level that means border services are no less effective than if the strike were not taking place, ensuring that all ports and airports remain sufficiently staffed and open during a strike. It is estimated this will require staffing levels of up to 75%.
- Rail: 40% of the usual timetable should operate as normal. For strikes that affect rail infrastructure services, the MSL is intended to ensure that certain priority routes can remain open between 10am and 6pm.
- Ambulance: Vital ambulance services in England should continue throughout any strike action, ensuring that cases that are life-threatening, or where there is no reasonable clinical alternative to an ambulance response, are responded to. It is expected that this will require around 80% of the usual staffing levels.
Next steps
The Department of Health and Social Care is seeking evidence on expanding the scope of the proposed MSLs further to include other urgent/emergency hospital-based services which could include doctors/nurses. The consultation closed on 14 November 2023.
Separately, the Education Secretary has committed to introducing MSLs, with potential consultations on establishing MSLs in schools, colleges and universities.
In addition to these new MSLs, the Department for Business and Trade launched a consultation on removing Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. That regulation prohibits employment businesses from providing agency staff to perform work carried out by striking employees (or backfilling the roles of other employees who are carrying out the strikers’ work).
If this sounds familiar, it is. As we reported previously, the regulation was repealed earlier this year, but the repeal was quashed in July by the High Court for lack of consultation. The new consultation is designed to remedy that omission.
If the repeal goes ahead, it would allow the use of temporary workers as additional resource during periods of official strike action.
