Strikes and minimum service levels for schools

In July 2023, the Strikes (Minimum Service Levels) Act 2023 (the “Act”) was passed giving the Business Secretary new powers to introduce regulations specifying minimum service levels (MSLs) in respect of a list of public services, including education.

The aim of the legislation is to safeguard essential public services during periods of strike action.

The Act

Under the Act, when a trade union calls a strike in a service to which MSLs apply, employers can issue work notices, following consultation with the union(s), identifying the workers that are required to work and the work they are required to do, to ensure the minimum service level is met during a strike. The work notice cannot identify more workers than are reasonably necessary to meet the minimum service requirement.

Unions must take “reasonable steps” to ensure that members identified in the work notice comply with the notice. If striking staff fail to deliver the specified service levels, they could face dismissal. For the unions, they may be liable for claims for damages. In addition, schools may have the right to seek an injunction to prevent strike action from taking place.

The Government consulted between August and October 2023 on a draft statutory Code of Practice on the reasonable steps that a trade union should take to comply with its obligations in relation to MSLs during strike action and published its response on 13 November 2023. An amended code will now be laid before Parliament and, is expected to come into force in mid-December – subject to Parliamentary approval.

Minimum service levels

On 20 October 2023, the Department for Education announced that the education secretary had written to education unions inviting them, on a voluntary basis, to discuss and agree MSLs in the event of strike action in schools and colleges. This followed the earlier announcement made by the Secretary of State to consult on MSLs in universities.

The proposals are set against the background of industrial action taken by staff in the education sector earlier this year in relation to disputes over pay and conditions. It is hoped that the proposals will protect children, young people and parents to ensure education can continue during any future strike action.

The initial response from the unions suggests that it is unlikely that they will voluntarily agree MSLs. If it is not possible to reach a voluntary agreement, the Government has confirmed that it will consult on MSLs with a view to imposing them using its powers under the Act.

Impact on independent schools

It is not clear whether the Act will apply to independent schools and we anticipate that we will receive clarification on this in due course. We will keep schools updated on this.

In the meantime, if you have any queries regarding the above, please contact Rachel Parkin, Partner or Oliver Daniels, Partner in the Education and Charities team.