Counterfire spoke to Aslef driver Footplate Fletch about LNER’s climbdown in the face of massive escalated strike action

The train company LNER planned to use for the first time the Tories’ anti-union minimum service level legislation to keep trains running on the East Coast mainline during the forthcoming strike action from 30 January – 5 February. They were forced into a humiliating U-turn after Aslef responded by announcing an extra 5 days of strike action (additional dates since cancelled).

Back in December, the union altered our industrial strategy. Rather than have all drivers out on the same day, the union adopted a rolling programme of strikes matching geographic lines, routes and companies together and spread the action over seven days. For example, all the drivers in the south-east, and all the drivers in the north are going to go out the same day because a lot of them cohabit on the same lines or route. 

Also, the union used the mandate for action short of strike throughout that week. A lot of the Train Operating Companies survive having institutionalised over time. The feedback from the membership was that the action was effective. And so the forthcoming seven-day strike action between 30 January and 5 February is modelled on December’s action. However, the difference is the Strikes (Minimum Service Levels) Act 2023 is now in effect. 

Five days that shook LNER

Aslef made it quite clear to each company ‘if you want to introduce MSLs for the coming strike action then what we’ll do is bang on another four, five or however many days necessary on top’. We made it crystal-clear to the companies that if you want to be best pals and buddies with the government then that’s what you’re going to get (and also remember, the Act doesn’t cover action short of strike). 

So across all the companies, there was only four that were sniffing about the possibilities of implementing MSLs. LNER were the most belligerent and certain that they were going to do it. The other three companies (TPE, Southeastern and Northern) flirted with the idea and indicated they wanted to meet with Aslef to discuss the possibility. 

Aslef ramped up the action and put on an additional five days of strike on LNER. The other three companies backed off. So, of all the companies that we’re in dispute with, most went nowhere near the new legislation, three were interested but rapidly backed off when they saw what we had planned for LNER. Now, LNER – directly controlled and funded by the government – were on their own. Not before long, LNER caved.

Aslef had made it abundantly clear to each company the consequences of implementing MSLs. We knew we had solid support from the membership given the repeated massive votes for strike action on huge turnouts time and time again. 

An attack on the Right to Strike

The union left the companies in no doubt that any wish to implement MSLs was an attack on the right to strike: ‘If despite the evidence around the impacts that MSLs will have on industrial relations and the fact that you are under no obligation to implement them, you will wish to remove the right of our members to take strike action…’.

Rail minister Huw Merriman had already confirmed to the union that ‘Employers will have the discretion on whether to use MSLs Regulations, as the parent primary legislation, the Strikes (Minimum Service Levels) Act 2023 does not create a statutory duty for employers to issue work notices’.

Indeed, secretary of state for Transport Mark Harper MP told the Transport Select Committee, ‘we are very clear that we are not forcing companies to use minimum service levels. There are tools available for them to deliver service… it is a backstop measure’. 

Harper added that he would ‘not penalise them (i.e. companies) if they do not feel it appropriate’.

Worsen industrial relations

It was clear from the evidence to the Select Committee that MSLs would not resolve disputes but only lead to more strike action – it would ‘worsen industrial relations’… ‘if the legislation reduces the impact of strike action on a given day, it could mean trade unions increasingly vote to take strike action more frequently which negates the aim of this policy’.

For the stipulated 40% of minimum services, companies would need 70% of staff at work to do it. Without going into too much detail (because it would reveal too much about the industrial tactics at our disposal that we could apply in any future circumstance), the sheer complexity of rostering arrangements and a whole host of safety and welfare matters (just to highlight two areas) left company directors and managers scratching their heads as to how they could ever implement MSLs.

That is not to say they won’t try again. And remember this legislation also applies to workers in health services, fire and rescue and education. And they might come back to tighten and strengthen the legislation.

But the truth is, drivers had already drawn their own conclusions. They were asking drivers to cross their picket line. Actually, they were demanding drivers cross their own picket line. 

War – at home and abroad

As former transport minister, Grant Shapps defended US/UK missiles descending on one of the poorest countries on the planet to protect commerce – profits – in the Red Sea (which is entirely unconnected to the Israeli genocide in Gaza of course!), here at home, the government is attacking workers’ fundamental right to withdraw their labour, the right to strike (hence slavery) to protect profits. We must never forget, that class war is war. 

We all knew that the companies had been leant on by the ministers at the Department for Transport. The Financial Times quoted the DfT ‘The Minimum Service Levels legislation is available for train operating companies to use, and the government has made it clear train operators should be ready to use them to reduce the impact of rail strikes on passengers’.

The companies know they’re dealing with a zombie government. They know their protection via the RDG is going to disappear. So many companies are already thinking ‘in the very near future, we need to repair industrial relations with our staff’. 

They elevated MSLs to a point of principle. Their promise to the travelling public that MSLs was the panacea for all evils on the railway – those naughty railway union people always going on strike. All of a sudden, not one company, not even LNER – controlled and funded by the government – have (can) implement MSLs. 

They realised we would shaft them. But let’s not get too complacent – after all, the legislation is still there. But now, after the next seven days of strike action and the overtime ban to match it, the DfT will have to seriously think about how (and that’s if it’s even possible) to resurrect the MSLs. Do they go back to parliament and enter the parliamentary process when in all probability this autumn they’ll be turfed out of power? 

At the moment though, the Minimum Service Levels legislation is in tatters – it’s a train wreck.