UK government publishes guidance on issuing work notices ahead of strike action

The Government has published guidance for employers, trade unions and workers on issuing work notices ahead of strike action. Under legislation planned for this side of Christmas, employers will be able to issue a work notice to specify which employees will be required to work during strike action to ensure that the minimum service level set for their sector can be met. This latest guidance is designed to help with that. We’ll speak to an industrial relations specialist on how it will work in practice.

A reminder. The Strikes (Minimum Service Levels) Act 2023 received Royal Assent in July with the aim of ensuring that the public can continue to access essential services during strike action and with Christmas just around the corner we expect to see it rolled out very soon. A fortnight ago the government published a draft code of practice for trade unions setting out what they should do if an employer issues a work notice. This latest guidance deals specifically with the ‘work notice’ which employers will be able to issue ahead of the strike to specify the workforce required to meet the minimum service levels for that strike period.

Personnel Today covers this and helpfully summarises what is complex and detailed guidance. It makes clear that employers should consider whether they can achieve the minimum service level without issuing a work notice, taking into account factors including the expected level of demand for their services, sickness or other absence, and the location, timing and duration of the strike. Importantly, it also makes that work notices must not include more workers than necessary to provide a minimum service. Also, when deciding who to name on a work notice, employers must not take into consideration: 

- trade union membership, including whether the employee is involved in a particular branch or section of a trade union
- whether the worker has taken part in industrial action
- whether the worker has used trade union services; and
- whether the union has raised a matter with the employer on the member’s behalf, or the worker has consented to a trade union raising a matter for them.

As you might expect, the TUC is very unhappy with all of this. General secretary Paul Nowak has spoken out saying: “Ministers have produced guidance which makes an already-dire piece of legislation even worse. They’re trying to wrap employers and unions in red tape with these unworkable laws. Every decent employer must reject these unworkable new laws. That means doing everything in their power to avoid using this counterproductive legislation.”

So, has he got a point? It’s a question I put to Diane Nicol who joined me by video-link from Glasgow: 

Diane Nicol: “It is going to be very cumbersome,  as I think I've previously said, for employers and unions alike. There's going to be a lot of work around it and some of the unions, and some of the employers, certainly, engage already in cooperating to try and provide a minimum service, for example in the health service, to try and ensure that people are not very negatively impacted in emergency situations. So, it will be troublesome, I think, to impose all of this red tape on top of that, and you may actually end up not getting the same sort of service that you might have got through cooperation. So, there are risks around it in that regard.”

Joe Glavina: “I see that a big chunk of this guidance is devoted the data protection implications of naming individuals in work notices and trouble employers could into if they don’t appreciate that. No doubt the ICO will be watching carefully but given this is such a controversial issue affecting the public at large, there must be a serious risk to reputation if employers get this wrong. The press will be all over it. Thoughts on that?”

Diane Nicol: “Well I think that there are quite a few issues for employers here. The HR folks are going to be very busy because they're going to be talking not only to their data protection experts internally, but their data protection lawyers, and their employment lawyers, to try and ensure that they don't do anything wrong in relation to work notices, talking to the unions, etcetera. They are also going to have to be very careful around the release of information about individual employees on these work notices, and so on. So, it is a very big issue and the last thing that an employer wants when it's trying to handle a strike, it's trying to make an accommodation with its employees to try and find resolution, is to have a complaint to the Information Commissioner, and to have a fine, and to have the negative publicity, which you've just touched on, in the newspapers because we all know that as soon as information is released in breach of data protection it's a big press issue. So they have the strike, potential breach of privacy laws and data protection laws and, also, potentially trying to get a work notice issued to secure minimum services. So, it's going to be a lot of extra work for employers and unions alike, as I've said.”

Joe Glavina: “There is a section in the guidance on ‘sharing and discussing the process with workers and trade unions’ which is an approach the government is in favour of. They say it will help reduce tensions, reduce the risk of disputes during the process and build trust. Is that an approach you’d endorse?” 

Diane Nicol: “For sure, and I think some of them do it already but I think it was felt that there wasn't enough engagement around this and there needed to be some sort of regulation around it to force employers and unions to talk to each other. Now, the government has, to some extent, listened to the unions because they said this is very cumbersome and, for example, the unions were going to have to tell all of their other members who was involved, and what was involved, in the minimum work notices and they have removed that requirement. Also, in relation to picketing, for example, they've removed the requirement that the pickets had to encourage those in the work notice, to work. So there's a bit of accommodation for the unions there, and there's a bit of encouragement, I think, in the guidance for them to work together to try and achieve these minimum services which means that there will still be strike action, the unions will still have a tool that's effective, but the public, in areas like ambulance, rail and border security, particularly around the festive period, will not be impacted, although they'll have to get a move on in relation to that if they're going to bring the regulations into force in time with all of the notice periods and so on. So, yes, I think that cooperation between the unions and employers is always a good thing. I think I've said before, and I'm probably like a long-playing record in relation to this, I think that the laws on industrial relations need to be reset and I think we should have much greater cooperation between employers and unions, and where that works well it can be really effective but the unions also have to play a big part in being more cooperative with the employers. So, it's a difficult landscape and I think a rewriting is perhaps what's required because we've been tinkering around the edges of industrial relations legislation for so many years now and it's not working.”

Joe Glavina: “Finally Diane can I ask you about Article 11 and a possible challenge of this legislation by the unions which they’ve been talking about consistently. In its defence, ministers have said that establishing minimum service levels would bring the UK into line with other countries including France, Italy, Spain, and the US. Presumably, those countries have been able to fend off challenges from their trade unions?” 

Diane Nicol: “Yes, and I think that there are provisions in other countries for minimum service levels. They're not quite so directive - certainly I know that that's the case for France, Spain and Italy - but there are provisions and they do use them. Yes, the unions have said there will be challenges but the government has tried to address that upfront by saying that they are taking into account the ability to strike and there will still be sufficient impact of the strike to balance the rights that they have, of  freedom of association and assembly, against the rights of the individuals to go about their daily business and the overarching economy and impact on other human rights.”

The government’s guidance on issuing work notices ahead of strike action was published on 16 November and we’ve put a link to it in the transcript of this programme for you. Also, a fortnight ago the government published a draft code of practice for trade unions setting out what they should do if an employer issues a work notice. Diane talked to this programme about the code and the duties it places on all parties, but especially the unions. That’s ‘UK Government publishes ‘minimum service levels’ Code of Practice’ and is available for viewing now from the Out-Law website.

LINKS
- Link to HRNews programme: ‘UK Government publishes ‘minimum service levels’ Code of Practice’
- Link to Government guidance: ‘Minimum Service Levels: issuing work notices, a guide for employers, trade unions and workers’