Minimum Service Levels:

The new Strikes (Minimum Service Levels) Act 2023 enables minimum service levels to be implemented through regulations in six key sectors: health, fire and rescue, border security, education, transport, decommissioning of nuclear installations and management of radioactive waste and spent fuel.

Where a minimum service level is in place and a trade union gives an employer notice of strike action, the employer can issue a work notice identifying the persons required to work and the work they must carry out to meet the minimum service level for the strike period. Once a work notice has been given to the trade union, the union must take "reasonable steps" to ensure all its members identified in the work notice comply with it. A union could face damages claims or an injunction to prevent the strike taking place if it fails to take reasonable steps. Individuals identified in a work notice who fail to comply and take part in strike action, could face disciplinary action including dismissal.

In its response, the Government sets out the changes to the Code of Practice on the reasonable steps trade unions will need to take to encourage compliance with work notices.  The step which required unions to send an information notice to all union members explaining that a work notice had been issued and how that would affect the strike was criticised for being too burdensome and difficult to implement and it has now been removed.  For similar reasons, the step on picketing has been simplified.  The other steps remain broadly the same.

The updated Code of Practice now needs approval from both Houses of Parliament, but the Government expects it to come into force in mid-December. Consequential amendments to the Picketing Code (under s205 TULRCA) will now be made and the Government has also published non-statutory guidance for employers, trade unions and workers on issuing work notices. The guidance sets out the steps and considerations for preparing and issuing a work notice as well as guidance on consulting with unions and notifying workers. Labour remain opposed to the Act and say they will repeal it if it gets into power and Scottish ministers have announced they will refuse to co-operate with the new regulations.

Minimum Service Levels for border security will require services to be provided at a level that means they are no less effective than if a strike were not taking place without relying on cover from other parts of the Civil Service or the armed forces and all ports and airports must remain open during a strike. Passenger rail services are expected to be 40% of timetabled services and ambulance services (in England only) will be required to answer and triage all emergency calls with all life-threatening calls, where there is no reasonable alternative to an ambulance response, to receive a response as they usually would on a non-strike day.

The Government proposes to reach voluntary agreement in relation minimum service levels for schools and colleges and has written to union leaders to invite discussion. In relation to universities, it has announced that it will launch a consultation focusing on stronger protections for final year students, key cohorts or those studying specialist subjects. This consultation has not been published yet.

Employment relationship and trade union freedom rights

In the recent case of The Independent Workers Union of Great Britain v Central Arbitration Committee and another (UKSC) the Supreme Court has held that food delivery riders were not in an employment relationship with the food delivery business and so were not covered by the right to form and join a trade union under Article 11 of the European Convention on Human Rights. This meant that the union could not rely on Article 11 to argue that the definition of "worker"  in TULRCA should be interpreted so as not to exclude the riders from exercising the procedure for statutory recognition.  It also held that Article 11 does not include a right to compulsory collective bargaining and any domestic case law suggesting otherwise should not be followed nor was there any breach of Article 11 where a state has declined to legislate for compulsory collective bargaining.

Draft regulations with changes to time recording, holiday and holiday pay and collective consultation

Following the recent consultation, draft regulations implementing changes to the Working Time Regulations 1998 (WTR) and TUPE have been laid before Parliament and are expected to come into force on 1 January 2024.

The Government's response to the consultation sets out the changes to be implemented. Our article on Holiday Pay Overhaul (Part 2): 5 key changes for employers in Great Britain sets out the changes to holiday pay, but in addition the Government proposals include:

• Time record keeping: Simplifying record-keeping requirements under WTR to provide that employers do not have to keep a record of the daily working hours of all workers if they are able to demonstrate compliance without doing so.
• TUPE Reforms: Amending TUPE to allow small businesses (with fewer than 50 employees) proposing a transfer of any size and businesses of any size proposing to transfer fewer than 10 employees to consult directly with their employees if there are no existing worker representatives in place.

Regulations are intended to come into force on 1 January 2024.

Draft regulations to retain key equality rights derived from EU law

The draft Equality Act 2010 (Amendment) Regulations 2023 will reproduce in the Equality Act certain key equality rights derived from EU law which would otherwise be sunsetted from the end of 2023 under the Retained EU (Revocation and Reform) Act 2023.  The intention is to ensure protection against discrimination is preserved in domestic law from 1 January 2024.  The amendments relate to:

• Direct discrimination relating to pregnancy, maternity and breastfeeding.
• Indirect associative discrimination where a person without a relevant protected characteristic suffers substantively the same disadvantage as those with that protected characteristic.
• Discriminatory statements about recruitment which may constitute direct discrimination in the context of access to employment and occupation as regards public statements outside a recruitment process.
• Preserving the single source test for comparators in equal pay claims giving the right to equal pay where employees’ terms are attributable to a single source (Article 157 of the Treaty on the Functioning of the European Union).
• The definition of disability in relation to employment and occupation to include a person's ability to participate fully and effectively in working life on an equal basis with other workers.

Criminal record disclosure timescales reduced

The rehabilitation periods for less serious offences have been reduced as long as no further offence is committed in that time and a new rehabilitation period for custodial sentences of over four years has been introduced.  This means that offenders for less serious crimes will need to declare their criminal record to employers for shorter periods.  For adult offenders, convictions resulting in:

• a Community Order will be spent on the last day on which the order has effect,
• custody of 1 year or less will be spent after 1 year,
• custody of between1 and 4 years will be spent after 4 years
• custody of more than 4 years' will be spent after 7 years.

These reforms do not apply to serious sexual, violent or terrorist offences which will never be spent and stricter disclosure rules will continue to apply to jobs that involve working with vulnerable people, through standard and enhanced DBS checks.