With rail strikes hitting the headlines in recent months, the Government has published its Transport Strikes (Minimum Service Levels) Bill (the Bill), which imposes restrictions against strike action in the transport industry.

The Bill is expected to come into force in 2023, however, with critics labelling it as controversial and alluding to legal challenges against its enactment, its form and contents remain uncertain.

Background

There are currently no limits in the UK to the number of employees able to take strike action together, allowing well-organised employees to bring their employers' operations to a halt. The Bill, which follows similar rules to those already in place in European countries such as France and Spain, could significantly alter this position.

The Bill requires employers and trade unions to take reasonable steps to enter into a 'minimum services agreement', which specifies the minimum service levels required for a skeleton service during strike action.  

Employers and unions are expected to thrash out the minimum service levels required to enable the employer's operations to continue during strike action. This requires them to consult with any regulatory or representative bodies who may have an interest.

If agreement is not reached within three months, the Central Arbitration Committee will intervene in order to determine the minimum service levels required. Such determinations are unlikely to consider the circumstances of the specific employer or trade union in determining minimum service levels, so parties are encouraged to reach agreement without intervention wherever possible.

Once either an agreement or determination has been made, the employer is able to issue a 'work notice' which specifies the employees who shall be required to work and maintain minimum service levels during strike action.  On its own, the minimum services agreement does not prevent trade unions balloting for and taking action in future, but it aims to reduce the unions' ability to stop the operation.

Key Considerations

• 1. If an employer or a trade union contravenes the minimum service requirements, the Central Arbitration Committee is permitted to make a declaration to that effect. Following any declaration, an interested party may request that the Employment Appeal Tribunal issues a penalty notice to the contravening party. Any agreement reached on minimum service levels must, therefore, be respected and considered binding on all parties.
• 2. If a person specified in their employer's work notice continues to take strike action despite being required to work during the strike, they will lose their protection from automatic unfair dismissal. Critics believe the fear of repercussions could place a blanket restriction on strike action which, in turn, raises human rights concerns. For this reason, the enactment of the Bill may be highly contested and any new law could be subject to a high level of legal challenge.
• 3. Whilst enactment of the Bill may stop a number of employees from striking, there is no guarantee that this would prevent determined employees from halting an employer's operations. Aggrieved employees may resort to collective tactics falling outside of recognised lawful action in order to demonstrate their dissatisfaction with their employer, which draws into question the Bill's effectiveness.  It is anecdotally reported that employees forced to work through a strike may call in sick and, in other European countries, there are reports of employees working but 'failing' to collect fares.
• 4. It has not yet been confirmed which transport services will be affected if the Bill becomes law, however, it is expected that it will apply to bus and train travel as a minimum. The Government has indicated its intention to limit the impact of strike action on the day-to-day lives of 'hard working people and businesses' and, if successful, expansion of the Bill could be seen both within and beyond the transport industry.

Contributors Sarah Ashberry and Lauren Burch