During strike action, employers in border security can impose minimum service levels, obliging a number of their employees to work rather than go on strike.
Border security was one of the first public services to have MSLs enacted under the Strikes (Minimum Service Levels) Act 2023 with the rules coming into force on 12 December 2023 under the Strikes (Minimum Service Levels: Border Security) Regulations 2023.
So what constitutes border security and what are the minimum service levels for border security, should the Border Service and the Passport Office wish to impose them on their workers? Unlike the rail sector, for which Department for Transport regulations stipulate that “the equivalent of 40%” of the timetable should operate, the Home Office has taken a more nebulous approach.
The level of service… to be given… is that, on each day of the strike, the border services are no less effective than they would be if the strike were not taking place on that day” – Minimum service levels regulations for border security
While the regulations do not actually say that the minimum service level for border security should be “100%”, they have attracted the first legal challenge from trade unions because, claim PCS legal representatives, they provide “unlimited” freedom to undermine the right to strike and “exceed the powers” of the Strikes (Minimum Service Levels) Act 2023.
The PCS is seeking a judicial review. The union will use the Human Rights Act to challenge the Strikes (Minimum Service Levels) Act 2023, which allows employers to require workers to come in during strike action to provide a minimum level of service.
Employers affected by border security MSLs
The Home Office, following a consultation, has decided that the Border Force should be able to deliver border security services without relying on cover from other parts of the Civil Service or the armed forces. It says when it uses minimum service levels in border security, it will only utilise staff “providing relevant border security services who are in Crown employment under or for the purposes of the Home Office”.
Two employers fall within the scope of the minimum service level regulations for border security: the Border Force and HM Passport Office. However, the latter only applies to activities in the “interest of national security”.
Border services listed in the regulations are as follows:
- the examination of people arriving in or leaving the UK
- the examination of goods imported or exported to/from the UK or prepared for exportation
- the patrol of ports (including airports) and UK territorial waters
- intelligence collection and dissemination relating to the above
- the direction and control of the above
- any services “for, or in connection with, the issuing of passports and other travel documents provided by HM Passport Office on behalf, or under the authority, of the Secretary of State”.
Employees of outsourced providers, i.e. not under direct employment of the Crown for the Home Office, are excluded. Anyone employed by the Border Force or HM Passport Office in Northern Ireland are also excluded from the regulations as they only apply to England, Wales and Scotland.
What is the minimum service level for border security?
The Home Office says it remains committed to “ensuring that we are able to deliver effective border security services on a strike day”. The regulations set out that “border security services should be provided at a level that means that they are no less effective than if a strike were not taking place”. This will be determined on a strike-by-strike basis, with recent experience of industrial action seeing staffing levels of around 70-75% being delivered by the Border Force.
Section 3 of the MSL regulations states: “The level of service, for the purposes of enabling work notices under section 234C of the [Trade Union and Labour Relations (Consolidation) Act 1992] to be given, in relation to strikes as respects the border services is that, on each day of the strike, the border services are no less effective than they would be if the strike were not taking place on that day.”
Section 4 similarly states: “The level of service… to be given, in relation to strikes as respects the passport services is that, on each day of the strike, such of those services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day.”
In its consultation response, the government does, however, suggest that some negotiation with unions could take place should a national strike be organised.
“We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place,” it says. “The government is therefore committing that it will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.”
The Home Office added: “We acknowledge the ability of employees to strike, and employees will continue to have this ability. However, in order to strike the balance between respecting the right to strike and ensuring the security of the border, we consider that all ports and airports should remain open on a strike day.”
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