Minimum service regs fail first test

Last December I posted about the new minimum service regs for the rail sector introduced under the The Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023. To recap, these require employers and unions to come to arrangements whereby, in the event of industrial action, 40% of timetabled network services can be run. The regs empower employers to issue ‘work notices’ requiring identified staff to provide their labour during a period of industrial action so as to maintain the service level requirements. I wondered what impact, if any, the new regs would have on strikes due to be called in the New Year and it turns out that we did not have to wait long to find out: see New legal restrictions on rail strikes.

On the run-up to the current round of train drivers’ strikes orchestrated by ASLEF, LNER indicated that it intended to use the legislation. This met with the immediate response that five additional strike days would be called which would, of course, have offset any advantages accruing from running 40% services for the duration of the original 24 hour strike. It is perhaps, not surprising that LNER was the first company to ‘try out’ the regs in that it is currently operated by the government through ‘the operator of last resort.’ However, the Guardian has reported that:

the government has privately told contracted firms that it expects them to use the new legislation to combat the strikes, though ministers do not want to be seen as publicly intervening in the dispute.

This is interesting because one of the issues which I considered in my previous blog on this topic concerns the extent to which train operators could be compelled to use the power to issue a ‘work notice.’ I argued that, whilst a challenge by way of judicial review was a theoretical possibility, it was more likely that commercial pressures would be exerted by way of the contractual obligation to ‘use all reasonable endeavours’ to avoid strike action  or to at least mitigate the consequences. Based on this first salvo, one cannot help concluding that the best way to meet this requirement is not to use the very powers which are arguably intended as a means of meeting this requirement!