How Will Minimum Service Regulations Affect Rail Employers and Employees?

Mariam Abu HusseinLegal Assessment Specialist @ Lawhive
Updated on 18th December 2023

The Regulations on minimum service levels (MSLs) during rail strikes are now in action. Wondering what’s the deal and how it all works? This article will give you the lowdown on what and how these Regulations are shaking things for rail transport organisations and employees in the UK. 


What are the minimum service levels? 

In December 2019, the Conservative manifesto pledged to introduce new legislation that would require a minimum service to be operational during transport strikes. Now, the Strikes (Minimum Service Levels) Act 2023 is turning those promises into a reality after receiving Royal Assent on July 20th, 2023. 

The Act means that employers can issue ‘work notices’ to meet minimum service levels to which Unions and workers have to comply. If they don’t, they might find themselves without protections against being sued or dismissed. 

A work notice lists the workers needed and the tasks they have to do during a strike to meet the minimum service levels set by the regulations. Once a work notice is given to a trade union, the union has to make sure all its members listed in the notice follow it. This helps the union keep its protection from legal actions by the employer related to the strike. If the union takes reasonable steps, it won't face legal consequences.

How are minimum service levels defined? 

For train operation services and light rail services, the minimum service levels mean they need to run about 40% of the scheduled services outlined in the National Rail Timetable for the relevant day. 

The rules don’t specify how the services should be spread out during the day, however. For example, an operator could choose to focus on providing more services during peak hours or spread them throughout the day. Importantly, the services need to be on routes typically operated by that train operator, but they can change the timing and stopping patterns. 

Light rail services follow a similar approach, based on the published timetable for that network. 

For infrastructure services, the regulations have a schedule that pinpoints priority routes. These routes are crucial, and the infrastructure must be operational from 6am to 10pm. These priority routes also cover any part of the network within 5 miles of the priority routes. This includes areas used for storing trains or linked to a freight terminal, facilitating the entry of trains into services, and the provision of freight services. 

Priority routes cover around 40% of the national rail network. These are mainly the major lines in Great Britain and commuter routes around big cities like London, Glashow, Liverpool, and Birmingham. They also include a few branch lines, such as the Island Line and Derwent Valley Line. However, they don’t include any routes in Wales (except Cardiff to the Severn Tunnel), Cornwall, or Scotland north of the central belt. 

If both infrastructure services and train operation services are on strike at the same time, some operators might struggle to meet the 40% timetable service requirement. This could be a challenge, especially for the Wales and Borders franchise. 

Who is impacted by the minimum service level regulations? 

The Regulations and the 2023 Act lay down the law for MSLs, but they’re not playing the enforcement card. They don’t demand that operating companies stick to the specified minimum service levels. Instead, they hand over the power to the operative companies and other employers. 

This grants them the authority to issue work notices to their staff if they decide to meet the specified MSLs. 

Impact to employers

Under the Regulations, work notices can be issued by: 

  • Train Operating Companies (TOCs): These are the companies in charge of running passenger rail services, except open access and international operators; 

  • Railways Infrastructure Managers: The managers who control rail infrastructure, like tracks and overhead lines; 

  • Light Rail Operators: Operators of tram or metro services. 

The Regulations cast a wide net. They cover TOCs and railway infrastructure managers, no matter which part of the government they’re under, be it devolved administrations or local government. However, the Regulations do not apply to Northern Ireland Railways. 

Light rail services include the London Underground, Docklands Light Railway, Glasgow Subway, and Tyne and Wear Metro, not to mention other light rail systems like Manchester Metrolink and Sheffield Supertram. 

When minimum service levels are in play, employers in the relevant sectors must figure out the staffing needed to meet these levels. They also need to establish a process for sending work notices to the trade union once the union signals its intention to strike. These notices must detail who needs to work and what tasks they should do during the strike. The employer must give a work notice seven days before the strike begins, or later if both parties agree.

Impact to employees

For train and light rail services, the rules mainly cover essential roles like drivers, guards (if needed), and other support staff that help run the services. It doesn’t include maintenance of the trains, except for those refulleing them. 

For railway infrastructure services, the rules include staff needed for everyday operations, like signallers, level crossing operators, and people handling communication and power supply. They also cover employees who quickly fix any issues with rail infrastructure. 

Reactions to Minimum Service Level Regulations

The government's evaluation of the railway minimum service regulations admits that they might make workplace relations worse and put safety at risk, as shared by the RAIL UNION RMT. According to Mick Lynch, the RMT general secretary, the government's assessment predicts more conflicts, strikes, and local disputes. There's a worry that introducing new work methods in a safety-critical industry could also compromise passenger safety.

Lynch also points out that the real motive behind these changes seems to be cutting workers' pay and pushing reforms like driver-only trains, which might not be great for passenger safety and accessibility.

Even though these rules are now in effect, the TUC Special Congress is expected to kick off a fight against Minimum Service Levels. The RMT is ready to keep clashing with any employer trying to enforce work notices against its members.

When do the Regulations come into effect? 

The Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 became law on December 7, 2023, after getting the green light from both Houses. They officially kicked in a day later on December 8, 2023.

These regulations can apply to any strikes happening after they came into force, even if the strike ballot had already happened before the regulations were made.

A Code of Practice outlining reasonable steps for trade unions (minimum service levels) got the thumbs up from Parliament and started rolling on December 8, 2023. This was a necessary step before any minimum service regulations could swing into action.

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