Keeping the railway moving: New legislation signals minimum services for passengers during strike action

What is the new legislation?

The Strikes (Minimum Service Levels) Act 2023 ("the Act") received Royal Assent on 20 July 2023. The Act sets out the framework within which minimum service levels must be provided on a strike day, and the principle that some employees must be made available to operate those minimum service levels. The detail of what "minimum service levels" look like in practice will be implemented on a sector-by-sector basis. Draft regulations for the rail industry have been laid before Parliament. It is anticipated that these regulations will be in force by Christmas 2023 (with a view to reducing strike-caused disruption over the festive period). The Government has also responded to the consultation on the Code of Practice on "reasonable steps" in relation to minimum service levels, intended for use by trade unions.

What does the new legislation mean for passenger rail?

The draft regulations, The Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 (we'll refer to them as the "MSL Rail Regulations"), have been laid before Parliament. The memorandum that accompanies the MSL Rail Regulations explains that the purpose of the new regulations "is to reduce the impact of rail strike action on the ability of passengers to access their places of work and essential services, and the negative impacts on the wider economy, by setting minimum service levels (MSLs) for passenger rail during strikes". The intention is that the MSL Rail Regulations will lead to an improved and more consistent level of service for passengers during rail strikes.

The MSL Rail Regulations provide how the Act will impact different categories of rail. In summary:

Category A: Train Operation Services (excluding light rail services)

Operators must deliver the equivalent of 40% of the timetabled services during the strike (by reference to the National Rail Timetable which would have operated in the absence of strike action). Interestingly, this does not include open access operators, chartered services or any sub-contractors. In relation to sub-contractors, this poses a real dilemma for operators as they may heavily rely on certain key sub-contractors in order to be able to deliver their train service. It remains to be seen how this will play out in practice.

Category B: Infrastructure Services (excluding light rail services)

Infrastructure services must be provided during the strike between 6am and 10pm on:

• listed priority routes (which is defined in, as well as set out in a Schedule to, the MSL Rail Regulations and also includes High Speed 1); and
• on any part of a network within a 5 mile radius of those priority routes and which is a loop, siding or a line which connects the priority routes to freight terminals, or stabling facilities or depots used for rolling stock or for plant, equipment and machinery used in providing the other infrastructure services.

Similar considerations to Category A apply in relation to the supply chain. If an infrastructure manager relies on a key sub-contractor to be able to deliver, for example, its infrastructure maintenance services, it will need to consider the terms of its subcontract. It will need to understand whether there may be a gap if both its staff and sub-contractor staff are on strike at the same time as a result of the same, or coordinated, strike action.

Category C: Light rail services

Operators must deliver train operation services and infrastructure services that are required in order to deliver light rail services necessary to operate the equivalent of 40% of the timetabled services during the strike affecting a light rail system. For light rail services, this is defined by reference to the most recently published timetable by the relevant light rail operator as at the date of the notice of the strike. There is a specific list of light rail services set out in the MSL Rail Regulations, which include Blackpool Tramway, Edinburgh Trams, Glasgow Subway, London Trams, London Underground, Manchester Metrolink, and the Tyne & Wear Metro.

How will the minimum service level requirements work in practice?

• The trade union will give an employer a notice of strike action. When a notice is given, the employer can then issue a "work notice" identifying persons who are required to work and the work they are required to carry out during the strike to secure minimum levels of service. A work notice must not identify more persons than are reasonably necessary for the purposes of providing the specified levels of service.
• Before issuing a work notice the employer must consult the union about the number of persons to be identified and the work specified. The employer must have regard to the union's response – although "having regard" is a relatively low threshold. In deciding whether to identify a person in a work notice, the employer must not have regard to whether the person is a member of a trade union or has taken part in the activities of a trade union or made use of services of the trade union. Rather, the focus must be on how many workers are reasonably needed to secure the required minimum service level. The practicalities of how this will work and the number of people required to deliver the minimum service level will be new ground to navigate and it is not clear to us how the number of people will be calculated – as 40% of services does not necessarily mean 40% of the people that would have been rostered on that day.
• Where an employer decides to issue a work notice, that notice must be issued to the trade union a minimum of seven calendar days prior to the strike day unless a later day is agreed with that trade union.
• Once issued, the work notice can be varied up to four calendar days prior to the strike day, unless a later day is agreed with the trade union.

What happens once a work notice has been given?

Once a work notice has been given to a trade union, that union must take “reasonable steps” to ensure that all members of that union who are identified within the work notice comply. This will enable that union to maintain the statutory protection it is entitled to from legal proceedings under tort law. Without the benefit of that statutory protection, an employer could potentially sue the union for inducing a person to take part, or continuing to take part, in a strike. The employer could seek damages from the union or an injunction to prevent the strike action taking place – which are real incentives to make sure the union facilitates the minimum service levels being provided. Employees who fail to comply with a work notice could lose their automatic protection from unfair dismissal for industrial action and could be subject to disciplinary action by the employer. So there is a lot at stake if unions or employees try to find ways of not working on strike days.

The Draft Code of Practice on "reasonable steps" in relation to minimum service levels is intended to be used by trade unions which give notice of strike action relating to services specified in relevant regulations, such as the MSL Rail Regulations. Employers and trade union members operating or working in such services should familiarise themselves with the Code. The Code sets out "Recommended 'reasonable steps'" including: (i) identification of members; (ii) encouraging individual members to comply with a work notice; (iii) picketing; and (iv) assurance.

Takeaways

Employers in the rail industry should familiarise themselves with the new legislation and how it applies to their businesses. Employers will also need to consider whether to issue work notices – bearing in mind that a workforce which is already taking or contemplating industrial action could be further alienated. When issuing work notices, employers should ensure they comply with all preparatory steps, and respect protections given to employees in the context of strikes.

The MSL Rail Regulations have significant implications for the industry and those using the railway: they relate only to trade unions making staff available to deliver the specified minimum service levels, and are intended to keep trains and people moving during strike action, but their reach extends to operators – including light rail operators – and infrastructure providers, who will have difficult decisions to make, and processes to implement.

Where there is reliance on the supply chain to deliver minimum service levels – and where strike action has the potential to affect the supply chain as well – the regulations will not directly apply and could still provide a barrier to providing the minimum service level. A review of the relevant provisions on strike action in those key sub-contracts is recommended to understand whether there is likely to be a gap.

If you have any questions on the topics raised in this article please contact any of the authors listed or your usual Stephenson Harwood contact and we'd be delighted to assist you.