Following on from the enactment of the Strike (Minimum Service Level) Act 2023 (the 2023 Act), on 25 August 2023, the government launched a six-week consultation on the "reasonable steps" trade unions should take to support minimum service levels during strikes (the Consultation). As part of this consultation, the government has also published a draft Statutory Code of Practice (the Code). The Consultation is seeking feedback on the Code and will remain open until 6 October 2023.

Key provisions introduced by the 2023 Act

The 2023 Act, which received Royal Assent on 20 June 2023, aims to "balance the ability to strike with the rights and freedoms of others to access key public services during periods of strike action."¹

Key sectors

The 2023 Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), to allow regulations to be introduced to specify the minimum service levels which apply to the following six key sectors:

• health services;
• fire and rescue services;
• education services;
• transport services;
• decommissioning of nuclear installations and management of radioactive waste and spent fuel; and
• border security.²

Issuance of a "work notice"

Once a minimum service level (in respect of a relevant service) has been set by regulation, an employer that receives notice of strike action from a trade union which affects that relevant service may issue the trade union with a "work notice".³ A "work notice" is defined as a notice (in writing) which states that levels of service under the minimum service regulations will apply in relation to that strike. The work notice has to identify those employees required by the employer in order to maintain the minimum service level.

A trade union that receives a work notice must, in order to maintain protection for itself and its members, take "reasonable steps" to ensure that all its members who are identified in the work notice comply with such notice.

Consequences where union does not take reasonable steps 

Trade unions that fail to take "reasonable steps" will lose protection from liability in tort under section 219 of TULRCA. The employer could therefore seek an injunction to prevent the strike action from taking place or for damages to be paid, even if the normal balloting requirements have been satisfied. 

From an employee's perspective, this will also mean that an employee taking part in that strike (regardless of whether they are identified in a work notice or not) would lose automatic protection from unfair dismissal under section 238A of TULRCA.

The Code

The draft Code outlines five steps that it proposes trade unions should consider when trying to meet their obligation to take "reasonable steps" to comply with a work notice issued by the employer. These are: 

• Identification of members – once the employer has issued a work notice identifying the workers and the work required in order to secure the minimum service level, it is for the trade unions to identify their members listed on the work notice. This is likely to require unions to ensure that their membership lists are up to date and that they can contact members quickly. The draft Code suggests that unions may want to agree with employers in advance how individuals will be identified in work notices to ease this process.
• Compliance notice – once the trade union has identified the relevant members, it should encourage them to comply with the work notice and not to participate in strike action for the period required under the work notice. The draft Code proposes that unions send a "compliance notice" to each member identified in the work notice. The Code states that the compliance notice should be sent electronically or, if that is not possible, by first class post. It also sets out a list of what should be said in the notice. The Code goes on to suggest that the union "may also wish" to engage individually with members identified in the work notice to reinforce the requirement. As the final Code can be referred to by courts and tribunals, there are likely to be arguments about what is reasonably required here.
• Information notice – the trade union should then communicate to its wider membership that a work notice has been issued to the trade union and that some of its members will be required to work during strike action. Again the draft Code sets out a list of what this "information notice" should contain.
• Picketing – the picketing supervisors should be instructed by the trade union to take reasonable endeavours to ensure that its members who are identified under the work notice will not be encouraged by those on the picket to participate in the strike action.
• Assurance – the trade union should ensure that it does not undermine any of the reasonable steps that it takes by, for example, inadvertently including identified members on communications calling on them to join the strike. This would require unions to quickly correct actions by union officials or members which may also undermine the reasonable steps.

Next Steps

Once the Consultation closes on 6 October 2023, the government will analyse the replies and publish its response to the Consultation.

The government has indicated that it will finalise the Code for approval by Parliament when Parliamentary time allows.

1. Consultation on the Code of Practice on "reasonable steps" in relation to Minimum Service Levels, 25 August 2023, page 6↩
2. Section 234B (4), Trade Union and Labour Relations (Consolidation) Act 1992↩
3. Section 234C, Trade Union and Labour Relations (Consolidation) Act 1992↩