Minimum Service Levels: issuing work notices, a guide for employers, trade unions and workers

Question 1

1. Introduction

Accepted Answer

The government passed the Strikes (Minimum Service Levels) Act 2023 to ensure that the public can continue to access services that they rely on, during strike action. Most major European countries, such as France, Italy and Spain, have had some form of minimum service level regime for many years and organisations such as the International Labour Organization (ILO) have recognised that such approaches can be an appropriate way of balancing the ability to strike with the rights of the wider public.

Regulations will set out the minimum service levels to be met in specific services (“MSL regulations”). Where MSL regulations are in place, once a trade union gives notice of strike action to an employer which operates services within scope of the MSL regulations, that employer can issue a ‘work notice’ ahead of the strike to specify the workforce required to meet the minimum service levels for that strike period.

This document is designed to give employers, trade unions and workers guidance on issuing work notices under section 234C of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”), as amended by the Strikes (Minimum Service Levels) Act 2023. Read information regarding the various draft MSL regulations.

This non-statutory guidance gives general guidance only and is not a substitute for professional legal advice. Courts and tribunals may choose to consider the views of the Department for Business and Trade in this guidance where they consider them relevant, but this is for courts and tribunals to decide. Only courts and tribunals can give authoritative interpretations of the law.

The guidance is structured in order of the process for issuing a work notice. Therefore, the whole of the guidance should be read through initially. Guidance in relation to data protection can be found towards the end of the document.

This document may be read in conjunction with other industrial action guidance and codes of practice on GOV.UK, including:

1.1 Note on terminology

Throughout the guidance, “must” indicates a legal requirement and “should” indicates a recommendation under this guidance.

Where the guidance refers to “the trade union”, this may be more than one trade union and the guidance should be read accordingly.

In this guidance, “worker” refers to both employees and other workers. “Employees” is used when referring specifically to unfair dismissal protections. We use “employer” to refer to any party who engages either employees or other workers. Further information about employment status can be found on GOV.UK.

Question 2

2. Overview of the law regarding Minimum Service Levels

Accepted Answer

The Act, as amended by the Strikes (Minimum Service Levels) Act 2023, enables minimum service levels (MSL) to be applied to specified services by regulations within these sectors during strike action:

health services
fire and rescue services
education services
transport services
decommissioning of nuclear installations and management of radioactive waste and spent fuel
border security

Minimum service levels legislation does not apply to other types of industrial action short of a strike.

Once the MSL regulations, which set out a minimum service level, are in force, if a trade union(s) gives notice to an employer of strike action under section 234A of the Act which relates to the services covered by the minimum service level, that employer can issue a notice (known as a work notice) to the trade union ahead of the strike action to specify the workforce reasonably necessary to meet the minimum service level for that strike period. The requirements for issuing work notices are set out in section 234C of the Act.

If an employer decides to issue a work notice, the notice must identify the workers required to work and specify the work that they are required to carry out during the strike to secure the minimum service level (section 234C (4) of the Act). Work notices must not include more workers than are reasonably necessary to provide the minimum service level specified by the relevant MSL regulations (section 234C (5) of the Act).

When deciding who to identify, employers must not take into consideration (section 234C (6) of the Act) whether or not a:

worker is a member of a trade union, or a particular trade union, including a particular branch or particular section of a trade union
worker has taken part in activities of a trade union. This would include strike action
worker has made use of trade union services
trade union has raised a matter with the employer on behalf of a worker (with or without the worker’s consent)
worker has consented to a trade union raising a matter with the employer on their behalf

Before an employer can issue a work notice, they must consult with the trade union which has given notice of strike action about the number of workers and the work to be specified in the work notice and have regard to the trade union’s views before issuing the work notice (section 234C (8) of the Act). This obligation applies before giving the original and any varied work notice (where the variation relates to the number of workers, or the work specified) (section 234C (10) of the Act). The employer must consult with all trade unions which have given notice of strike action which relates to the services specified in the MSL regulations for the strike covered by the work notice.

If an employer decides to issue a work notice, it must be issued to the trade union a minimum of 7 calendar days prior to the strike day, unless a later day is agreed with that trade union (section 234C (3) of the Act). Once issued, the work notice can be varied by the employer before the end of the fourth calendar day prior to the strike day, unless a later day is agreed with the trade union (section 234C (9) of the Act).

A work notice is valid if it is given in accordance with section 234C of the Act. If the work notice is validly given by the employer to the trade union, trade unions who do not take reasonable steps to ensure that their own members who are identified on the work notice comply with it, will lose their protection under the Act from damages claims by the employer and/or could be subject to an injunction to prevent the strike from taking place (as a result of liability in tort) (section 234E of the Act). This is ultimately a matter to be determined by the courts.

If a trade union fails to take reasonable steps, this would also mean that the strike is not protected under section 219 of the Act, so an employee taking part in that strike, who was induced to strike by that union, would lose their automatic protection from unfair dismissal under section 238A of the Act (whether or not they had been identified in a work notice). See the Code of Practice on reasonable steps.

Employees who are specified on a work notice but take strike action contrary to that work notice will lose their automatic protection from unfair dismissal for industrial action, provided they were notified by the employer in writing of the requirement for them to work, of the work they were required to do on the strike day, and that they were required to comply with the work notice (section 238A(9) of the Act).

Question 3

3. Purpose of a work notice

Accepted Answer

A work notice is a document, issued by an employer to the trade union, which identifies the workers required and the work they must carry out during the strike to secure the minimum levels of service set out in the MSL regulations.

3.1 When can a work notice be used?

An employer can issue a work notice to the trade union where:

the trade union has given notice of strike action to the employer, and
that employer provides a service specified in the MSL regulations

A work notice cannot be used to secure a minimum level of service during other forms of industrial action, such as an overtime ban, or for periods where there is no industrial action.

Employers and trade unions should consider whether a voluntary agreement covering the provision of services during strike action is appropriate and achievable to deliver minimum service levels, as an alternative to an employer issuing a work notice.

The chart on the following page sets out the steps for producing a work notice.

3.2 Steps for producing a work notice

Steps for producing a work notice

1) Before a strike

employer and trade union familiarise themselves with the regulations and appropriate guidance on minimum service levels
employer assesses what level of work could be needed to meet the minimum service level and develops a process to identify the numbers of workers required and the work they must do

2) Strike announcement

trade union gives notice of strike action to employer

3) Preparation

employer decides whether to issue a work notice in relation to the strike (including whether minimum service levels can be met by existing voluntary agreements)
employer assesses the number of workers required and the work they must do to achieve the minimum services level
employer consults with trade union on the numbers required to work and the work they must do
trade union gives any views to the employer
employer has regard to the trade union’s views
employer prepares the work notice identifying workers and the work they must do

4) Issuing of work notice

employer gives the work notice to the trade union by the seventh day prior to the strike, unless a later day is agreed with the trade union
trade union takes reasonable steps to ensure that all members of the union who are identified on a valid work notice comply with the notice and do not strike

5) Notification of worker

employer notifies the workers identified in the work notice in writing that they are required to work and the work they are required to do, by the day before they are required to work

To note, the employer can vary the work notice up until the end of the fourth day before the day of the strike (unless a later time is agreed with the trade union). The employer is required to consult the trade union about any proposed variation to the number of persons to be identified and/or to the work specified before issuing the varied work notice.

3.3 Timeline

Days before strike action (minimum timeline)	Action
Pre-strike	Employer and trade union prepare.
14	Trade union gives notice of strike action to employer.
14-7	Employer assesses the number of workers and the work required to achieve the minimum service levels.
14-7	Employer consults with the trade union and has regard to trade union views.
14-7	Employer prepares the work notice (if it decides to do so).
7	Employer issues the work notice to the trade union, unless an alternative date has been agreed with the trade union.
7 - 1	Employer notifies workers that they are identified in the work notice.
4	Final amendments to be made to the work notice by the employer (unless variation after that day is agreed with the trade union).
0	Strike action.

Question 4

4. Prior to notice of strike action

Accepted Answer

Prior to any strike action, the employer should understand whether any of the service(s) they provide are in scope of any MSL regulations and if so, take time to familiarise themselves with both the MSL regulations and this guidance.

4.1 Preparing for a work notice

There will usually be limited time once notice of strike action is given by the trade union in which the employer can prepare and consult on a work notice. Undertaking preparation in advance of this, where possible, is therefore recommended.

Preparation will vary depending on the circumstances for each employer but may include: developing an approach to identifying workers and the work required; discussing the consultation process with the trade union; and developing the process for preparing and issuing a work notice. Sharing and discussing the process or policy with workers and trade unions will help to build trust and demonstrate that the process is clear and fair. This may help to reduce tensions and disputes during the process. This can also help demonstrate that the employer is not taking into consideration a worker’s trade union membership or related activities when creating the work notice.

The employer should look to discuss the type and format of data to be shared in a work notice with the trade union, to ensure that the trade union can access and process the data, and that the trade union can use that information to identify their members.

Employers may want to consider alternative ways to identify workers in the work notice to limit the personal data being transferred, for example, by using a unique identifying number. For some roles, employers may also want to consider how to describe the work required, to ensure that sensitive information is not shared more widely than necessary. See section 10 on data protection requirements.

The employer will need to assess what work is likely to be needed to achieve the minimum service level set out in the MSL regulations. Employers should check the MSL regulations as to whether the minimum service level varies in different circumstances and consider carefully how these differences may impact on the work that is likely to be needed.

When deciding which workers to identify in a work notice, the employer should consider a range of factors, including, but not limited, to:

the numbers of workers needed to meet the minimum service level
the skills, experience and knowledge of the workers required
whether any staff cannot be included due to, for example, mandatory rest periods, or other reasons for absence from carrying out their ordinary functions, such as attending training or annual leave
existing rotas (where applicable)
whether any individual has been identified in other work notices recently. Employers should avoid including the same workers in a work notice where there are repeated strikes, if possible. However, the extent to which individuals may be identified regularly will depend on who may be available to work on the strike day, which is influenced by factors such as leave, sickness, relevant experience, skills, and training

The employer should keep a record of their methodology for identifying the workers and the work required for a work notice.

The Act is clear that employers must not take into consideration a worker’s trade union membership or related activities when creating the work notice. This includes whether or not:

a worker is a member of a trade union or a particular trade union, including a particular branch or particular section of a trade union
a worker has taken part in activities of a trade union. This includes strike action.
a worker has made use of trade union services
a trade union has raised a matter with the employer on behalf of a worker (with or without the worker’s consent)
a worker has consented to a trade union raising a matter with the employer on their behalf

In selecting workers for the work notice, the employer must comply with all its contractual and other legal obligations, including employment law, data protection, equality and health and safety requirements. For example, the employer must comply with its obligations under the Equality Act 2010.

4.2 Do workers have to be redeployed to cover for striking workers?

No. The Act does not impose an obligation on employers to consider redeployment before issuing a work notice. It is a decision for the employer as to how they prepare the work notice, taking into account all relevant factors such as those listed above, and having regard to any views expressed by the relevant union(s).

Question 5

5. Following notice of strike action

Accepted Answer

5.1 Deciding to issue a work notice

Once a trade union has given the employer notice of strike action, the employer can decide whether to issue a work notice. There is no statutory duty on the employer to issue a work notice. However, the employer should consider any existing legal duties or obligations they may have when deciding whether to issue a work notice: for example, contractual or public law duties.

The employer should consider a range of factors when deciding to issue a work notice, including, but not limited, to:

whether they can achieve the minimum service level without issuing a work notice
levels of attendance during any previous strike action
circumstances which may affect the delivery of the minimum service level, including expected level of demand for the service, and the location and timing of the strike
the duration of the strike
voluntary agreements they have with the trade unions to provide for minimum levels of staffing during strike days

If the employer intends to issue a work notice, there will be legal obligations for the employer to meet, including consulting with the trade union and meeting timelines for issuing the work notice.

5.2 Assessing the number of workers and the work they must do

The ability to strike is an important part of industrial relations in the UK, protected by law. Therefore, the Act requires that employers must not include more workers in the work notice than are reasonably necessary to provide the levels of service set out in the MSL regulations.

When selecting workers for the work notice, the employer must not take into consideration whether they think that a particular worker is likely to take strike action. Rather, the focus must be on how many workers are reasonably needed to secure the required minimum service level.

An employer can only identify their own workers in a work notice. A sub-contractor may of course also choose to issue a work notice to their own workers, if they are in scope of the specified services under the MSL regulations and have themselves been given notice of strike action under the Act by a trade union see also the Q&A 7.4 self employed workers / agency workers.

The employer must consult the trade union about the proposed number of workers to be identified and the work they must do see section 6 on Consulting the Trade Union.

5.3 How many workers can reasonably be identified in the work notice?

Employers should not name more workers than are reasonably necessary to secure the minimum service level. It is important for employers to understand how a minimum service level will be different to normal service levels that they are able to operate. Depending on the way a minimum service level is described in the MSL regulations, the number of workers required to provide the particular service level may change depending on the time of day, week or year that the strike takes place or the circumstances at the time (including seasonality, location or demand). Employers should make reasonable assumptions when predicting the effect of fluctuating demand on the services in question when determining the number of workers that are reasonably necessary to meet the minimum service level.

The employer can identify workers in the work notice whose usual role (either generally or at the particular time(s) of the proposed strike) is to be on-call, stand-by or to provide cover, where this is part of their contract and where these workers are considered reasonably necessary to secure the minimum service level. Those workers should be included in the work notice in the same way as other workers, but specifying that the work required is either regular provision of work or ‘on call’, for example.

Employers can allow for potential sickness or other absence (both authorised and unauthorised) during the strike and build in a reasonable contingency for this in the work notice to ensure that the minimum service level can be secured. This should be evidence-based by, for example, the employer considering their own records for historical levels of sickness and other absence. This evidence could be from non-strike days, and, where applicable, from strike days when a work notice has previously been issued. This will support employers to ensure no more workers than are reasonably necessary are identified in the work notice. Sharing the results of this exercise with trade unions may help to reduce the risk of disputes.

The work notice cannot override an employment contract or other contract with a worker. For example, if an individual cannot be required under the contract to work on a Sunday, the work notice cannot override that agreement.

Following strike action where a work notice is issued, employers should review the number of workers identified in that work notice and the work required of them for that strike, so that this learning can be applied to future work notices which may be comparable in their application. The employer may then decide to refine or adjust its approach to identifying workers to ensure that future work notices identify no more workers than are reasonably necessary to secure the minimum service level.

Question 6

6. Consulting the Trade Union

Accepted Answer

Before issuing a work notice the employer must consult the trade union, which has given notice of strike action, about:

the number of workers to be identified; and
the work to be specified in the work notice

The employer must have regard to any views expressed by the trade union in response. The consultation provides an opportunity for the trade union to raise and discuss any concerns with the employer on the number of workers to be identified and the work to be specified. While the employer does not need to agree the number of workers and the work to be specified in the work notice with the trade union as part of this consultation, the employer should give proper consideration to the views of the trade union. This process should help employers to meet the requirement not to identify more workers than are reasonably necessary to provide the level of service set out in the MSL regulations.

Consultation may consist of, for example, a face-to-face meeting or email correspondence. This may vary depending on factors such as the time available and any established processes. However, the employer should share the consultation initially in a written format, and preferably electronically, due to time constraints and for ease of record keeping.

The employer must not share any personal data with the trade union during the consultation period, such as the individual names of workers who may be affected by any subsequent work notice. The focus of the consultation should be on the number of workers, and work required, and not on the individual(s) who may undertake that work.

The trade union should provide the employer with the contact information which the employer should use to send the trade union the work notice.

6.1 Timings for consultation

The consultation should be carried out with sufficient time for the trade union to consider the proposed number of workers to be identified and work to be specified, and express their views in response, and for the employer to consider the response and draft the work notice in light of this.

The Act requires that a work notice must be issued by the employer any time from when the notice of strike is received but no later than 7 calendar days before the strike day, unless a later day is agreed by the trade union.

A notice of strike can be given by the trade union no later than 14 days before the strike day. Where the strike notice is given on the last possible day, this will only allow 7 calendar days for the employer to consult with the trade union on the number of workers and the work to be specified, to prepare the work notice, and to issue it to the trade union. Therefore, where a notice of strike has been received, and the employer has decided to issue a work notice, consultation with the trade union needs to take place as soon as reasonably practicable, to ensure that the employer can comply with the time limits in the Act.

If the trade union does not respond substantively to the consultation by a date and time reasonably set by the employer, the employer can continue to issue the work notice.

6.2 What does the employer have to do with views it may receive from the trade union?

The employer must have regard to any response from the trade union and should take that response into account in satisfying themselves that they are compliant with the obligations in the Act before issuing a work notice. Employers are not obliged to agree with the response from the trade union, if they consider their approach is compliant with the Act and relevant MSL regulations. However, they must consider all feedback appropriately and make any changes to the work notice they think are necessary as a result.

The employer should keep a record of their interaction with the trade union, including the rationale for how they have responded to any trade union views. Employers should respond to any views given by the trade union during the consultation before or at the same time as they give the work notice to the trade union.

For further information about processing data and record keeping, see section 10 on data protection requirements.

6.3 What consultation should take place if more than one trade union has given notice of strike action?

If more than one trade union has given the employer notice of strike action for the same day, relating to the same services under the relevant MSL regulations, then the employer should consult all trade unions which have given notice of strike action on a particular strike day that the work notice relates to.

Where more than one union has given the employer notice of strike action in relation to the same services, but for different days, the employer should consider whether it is appropriate to issue work notices and consult on the same information or whether separate work notices and consultations are necessary for each day.

Question 7

7. Producing the work notice

Accepted Answer

Following consultation with the trade union, the employer must prepare the work notice. The employer should keep a record of their methodology for identifying the workers and the work required for a work notice.

7.1 Information to include in a work notice

The Act requires that a work notice must identify all the workers who are required to work during the strike to secure the minimum service level and to specify the work they must do to secure that level of service.

The employer should decide the period that a work notice applies to. This should be set out in the work notice, including, for example, the time of day and dates. This may cover continuous or discontinuous strike action.

The format of the work notice should, where possible, be agreed with the union with a view to ensuring that the work notice is shared in a format that can be accessed and understood by the trade union.

7.2 Workers who are required to work

This can include any type of worker who is reasonably necessary to secure the minimum service level (which, for example, could include full- and part-time staff and on-call staff), subject always to the employer being permitted to require the worker to perform that particular kind of work under their contract. However, an employer can only identify its own employees or other workers in a work notice and not, for example, the employees or workers of sub-contractors. A sub-contractor may of course also choose to issue a work notice to their own employees or workers, if they are in scope of the specified services under the relevant MSL regulations and have themselves been given notice of strike action under the Act by a trade union see also Q&A 7.4 self employed workers / agency workers

7.3 Specify the work required

The work specified must be consistent with the minimum service level set out in the MSL regulations. The work notice will need to clearly set out the work the identified individuals are expected to do to contribute to securing the minimum service level. This will be different for each role and employer. For some workers, the work required to secure the minimum service level may be the same as on a normal working day and therefore a brief description may be sufficient. For others, their work may need to be adjusted (within scope of their employment contract or contract for services), and more substantial description may therefore be needed.

Employers will of course need to comply with all relevant employment, equality and health and safety laws, including being satisfied that the work specified is within the scope of a worker’s employment contract or contract for services. Some workers could be unexpectedly absent, or operational demands and circumstances could change on the day. Employers may therefore want to ensure that the work specified in the work notice will allow some limited re-tasking or re-deployment of workers if necessary. The employer should also keep records of the reasons underpinning decisions made when preparing the work notice.

The work notice is shared with the trade union so that they can identify their members who have been included in it. The trade union can then take reasonable steps to ensure that all their members identified within a work notice comply with that notice. The amount of personal data included in the work notice must enable the trade union to identify their members, but it should be no more than is necessary. Employers and trade unions should seek to agree in advance the types of data to include in the work notice to ensure the trade union can identify their members, and that this is made clear to the workers. See section 10 on data protection requirements for further information.

The work notice must identify the individual workers: it can generally include the names of workers, but employers should consider whether identifiers other than names can be used to accurately identify workers in the work notice. For example, if both the trade union and employer hold a unique identifier, that could be used as an alternative. See section 10 on data protection requirements for further information). In certain circumstances, such as in a small number of sensitive sectors where there may be security or safeguarding considerations, the employer may want to consider alternative ways to identify workers to the trade unions.

Where names are included in a work notice, there may be some circumstances, for example where there is more than one worker of the same name in an organisation, where other information may need to be provided by the employer, such as the worker’s job title, to assist the trade union in identifying its members.

The work notice should not identify whether individuals are a trade union member or not and it should not include other special category data. Special category data is personal data that is particularly sensitive under Article 9 of the UK GDPR and includes trade union membership and health data.

For some roles, employers may also want to consider how to describe the work required, to ensure that sensitive information is not inadvertently shared more widely than necessary.

7.4 Can self-employed persons/contractors be included in a work notice?

No, an employer can only include their own workers in a work notice.

If, however, independent contractors or self-employed persons are habitually used in the relevant service by the employer and they are due to attend work on the day of strike action, then the employer should take the resource provided by these other individuals into account when drafting the work notice to ensure that it contains no more of the employer’s own workers than are reasonably necessary to meet the minimum service level. This does not mean employers need to bring in extra independent workers (in addition to those habitually used) to provide cover to reduce the number of workers in their work notice.

Employers should not use independent contractors or self-employed persons to try to secure a higher level of service than the minimum service level once the employer has issued a work notice. To do so may suggest that the work notice has named more individuals than are reasonably necessary.

7.5 Can agency workers be included in a work notice?

No, an employer can only include their own workers in a work notice. The provision of agency workers during industrial disputes is also restricted by regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

7.6 Should a new work notice be produced for each strike day?

A work notice may be produced and issued for each day that a strike takes place, or to cover several strike days (including continuous or non-continuous strike days), or the entire period to which the notice of strike action relates. This will be for the employer to decide. The work notice should specify the period it covers and be given to the trade union at least 7 days prior to the first day that the work notice applies to.

A work notice covering several strike days can set out different numbers of workers and different work required for different days, if different workers and/or work is required to meet the minimum service level applicable on each respective day.

Question 8

8. Issuing the work notice and notifying workers

Accepted Answer

The work notice can only be issued to the trade union. Workers must not be sent the work notice as it contains other workers’ personal data. Instead, workers must be notified individually if they are on the work notice.

If an employer decides to issue a work notice, it should be issued as soon as possible, and no later than 7 calendar days prior to the strike day (or earliest strike day, where the work notice covers more than one strike date), unless a later day is agreed with the trade union. For example, if there is a strike which is due to begin on Saturday 23 September, then the employer should count back 7 days. The seventh day before 23 September is Saturday 16 September, so 16 September would be the last day on which a work notice could be given.

Once issued, the work notice can be varied up to 4 calendar days prior to the strike day, unless a later day is agreed with the trade union. For example, using the previous example of a strike due to begin on Saturday 23 September, the employer should count back 4 days. The fourth day before 23 September is Tuesday 19 September, so 19 September would be the last day on which a work notice could be varied (unless a later day is agreed with the trade union). Where the work notice applies to more than one day of strike action (whether continuously or discontinuously), the work notice can be varied up to 4 days prior to each respective strike date within the work notice.

The work notice must be issued in writing to the trade union. Due to time constraints and for ease of record keeping, it should be issued electronically. The trade union should acknowledge receipt of the work notice, communicating this promptly to the employer.

If more than one trade union has given notice of strike action which relates to the same services covered by the MSL regulations and to the same strike days, then the same work notice should be issued to all relevant trade unions.

8.1 Notifying workers

Employers should provide each relevant worker with an individual notification setting out:

that they have been identified in a work notice and they are required to comply with it
the work specified in the work notice that they will be required to do during the strike action
and, in general terms, the potential consequences if they do not comply with the terms of the work notice. This does not, of course, mean that the employer needs to have decided in advance what those consequences would be, as any disciplinary action would be subject to further consideration and proper process

Whilst notifying workers is not a legal requirement under the Act, employers should do this as a matter of routine practice. This will help the worker to understand what is expected of them and help the employer provide the minimum level of service on the strike day. Workers must not be sent the work notice as it contains other workers’ personal data.

Notification from the employer should, wherever possible, be sent electronically due to time constraints and for ease of record keeping. In addition, employers may also choose to engage with each worker identified within the work notice to explain what it means for them, and what is expected of them on the day of the strike, and to answer any questions they may have.

Employees who have been notified by their employer before the day of strike action that they have been identified in a work notice and that they must comply with it, and who have been notified of the work that they are required to do, would lose their automatic protection from unfair dismissal for industrial action if they took strike action and did not work, contrary to that work notice.

Ideally, this notification should happen as soon as reasonably practicable after the work notice has been given to the trade union. Employers will also want to ensure workers are aware of details such as the location of the work and the timings, where needed, whether in this notification or elsewhere.

8.2 Can the work notice be changed after it has been issued?

Work notices can be varied until the end of the fourth day before each strike date (unless a later day is agreed with the trade union). This can provide flexibility to make changes for reasons such as sickness, a change in circumstances or administrative errors.

Where more than one trade union was consulted with in relation to the work notice that was issued, and the employer is seeking to vary the work notice after the fourth day before the strike, then all trade unions would need to agree to this.

Before varying a work notice, an employer is required to consult the trade union about any proposed variation to the number of persons to be identified and/or to the work specified. Employers should highlight these changes to the trade union during the consultation. As before, the employer must have regard to any views of the trade union on the proposed variations to the number of persons or work required. The varied work notice must then be given to the trade union.

If a strike is cancelled (called off), the work notice will no longer apply as there will no longer be a strike for it to relate to. Employers should communicate these new circumstances with their workers in accordance with their normal worker relations channels and take steps to resume normal service. Without these clear instructions from the employer, the worker may be confused as to what is expected of them on that day.

8.3 Can a work notice be withdrawn after it has been issued?

The Act does not make provision for the withdrawal of a work notice, once given to the trade union.

As stated above, if the trade union which earlier gave notice of the strike calls off the strike (whether because the underlying dispute has been settled or otherwise), then a work notice given in relation to that strike will no longer apply. However, where several trade unions are taking strike action and the work notice relates to more than one trade union strike, if only one strike is called off, the work notice will still apply.

8.4 Can employers require workers to return to work, for example, during a major incident?

If a major incident happened on the day of the strike and the strike is to continue, employers should discuss with trade unions how this can be appropriately managed. Employers and unions may consider having a voluntary agreement with workers and/or with the trade union that could apply in the event of a major incident to allow additional workers to attend work to respond to an incident or emergency on a strike day, where this is not already in place. This would need to be discussed with the trade union in advance of any strike action.

8.5 Can a worker appeal a decision to be included in a work notice?

There is no requirement for an employer to run a formal appeals process. But, if a worker has a concern with their inclusion in a work notice, they should discuss it with their employer. This should be done as soon as possible. Employers should have constructive conversations with workers if they feel there is a reason, other than a desire to take strike action, why they should not be named in the work notice. See Q&A ‘Can the work notice be changed after it has been issued?’, for information on varying a work notice.

8.6 What should a trade union do if it believes the work notice contains inaccurate or incomplete information?

Upon receipt of the work notice if the trade union is concerned that it may contain inaccurate or incomplete information it should engage with the employer to clarify the position. Following this the employer may wish to vary a work notice.

Question 9

9. Duties on workers and trade unions once a work notice has been issued

Accepted Answer

9.1 Duties on the trade union

Once the trade union receives a valid work notice the trade union must take reasonable steps to ensure that all their members identified within a work notice comply with that notice. Further information is available in the Code of Practice on Reasonable Steps.

9.2 Duties on a worker

Workers who have been identified in a work notice should attend work and carry out the work specified within the work notice.

Identification of a worker in a work notice cannot require that worker to work in circumstances where they would not otherwise be required to do so under their employment contract. Employers will of course also need to comply with all relevant employment, equality and health and safety laws.

Where an employee has been identified in a work notice and they are unable to attend work because of sickness or any other authorised absence, then they would not lose their automatic protection from unfair dismissal for industrial action as they would not be taking industrial action. In these circumstances, the worker should notify their employer of their absence from work as soon as possible, in line with the employer’s relevant policies.

9.3 What happens if a worker identified on a work notice does not attend work on the specified day?

Employers have discretion as to what, if any, disciplinary action is taken, as they do for other types of unauthorised absence, in accordance with relevant employment law. If a worker has not attended work on the day of the strike as expected, and they are not on strike and the absence is not authorised, employers may wish to consider taking any steps under their ordinary processes dealing with workers’ unauthorised absence.

If an employee has been identified in a work notice and they have been notified by their employer of this (including that they must comply and of the work they are required to do), and the employee does not attend work because they are participating in strike action contrary to the work notice, then they would lose their automatic protection from unfair dismissal for participating in industrial action. This would also be the case for any employees identified in the work notice whose role it is to be on-call, stand-by or to provide cover. They would lose their automatic protection from unfair dismissal if they participated in strike action contrary to the work notice by refusing to work or be available for work, even if, in the event, they were not required to undertake ‘active work’ during the strike.

An employer could ask other workers who are not identified in a work notice, but who attend work on the day without having been required to do so by the employer, to cover any absence of workers named in the work notice who unexpectedly do not attend work on the day of the strike as required. This would of course need to be in line with the individual’s employment contract or contract for services, unless voluntarily agreed by the individual.

9.4 Can an employer require a worker to undertake work outside of what is specified in a work notice?

For the purposes of complying with the work notice and achieving the minimum service level, on a strike day, a worker identified on a work notice is only required to do the work set out in the work notice.

Furthermore, nothing in the Act or regulations will override the rights and obligations of the parties under contracts of employment or workers’ contracts for services.

What should a worker do who is not named in a work notice, but is not intending to strike?

Any worker who does not intend to strike and is not named in a work notice should still be available for work as normal. Employers may want to make this clear to their workers.

If additional workers attend work beyond those that have been named on a work notice, without being required to do so by the employer, the employer is able to task those workers in line with their employment contracts. The employer does not have to send them home. This may result in the employer delivering a level of service higher than the minimum service level for that strike. In this situation, the employer should review its approach to identifying workers to ensure that future work notices do not identify more workers than are reasonably necessary to secure the minimum service level.

9.5 Can a worker who is named on a work notice send a substitute in their place?

No. The decision for who is identified in a work notice is for employers, taking account of their obligations within the Act. A worker may know that they cannot attend work on the day of the strike because of an authorised absence and the employer can vary a work notice to update those identified and the work required because of this (provided such variation is within the statutory timeframes, or a later date agreed with the trade union).

Workers and trade unions should not seek to procure or recommend that substitutions take place.

Question 10

10. Data protection requirements

Accepted Answer

10.1 Overview

The employer and trade union (which are each a ‘data controller’) must each process personal data for the work notices in accordance with existing data protection requirements as defined in applicable data protection law. It is the responsibility of each data controller to ensure that they are compliant with the relevant legislation and regulations.

Section 234D of the Act states that where individuals are identified in a work notice and it is shared with a trade union, this will not breach obligations of confidence or similar restrictions on the employer as long as it is otherwise compliant with data protection legislation.

Section 234C does not remove the need for either the employer or the trade union to comply with their other obligations in the data protection principles / UKGDPR, for example, to ensure details used are limited to those relevant and necessary and which are not excessive. Employers and trade unions must have a lawful basis for processing personal data under UK data protection law and they will need to be clear which lawful bases apply when processing personal data in relation to work notices for the purpose of ensuring a minimum service level. Different lawful bases can apply to the distinct stages of data processing operations: preparation, deciding to issue a work notice, processing health or sickness data, sharing the work notice with the trade union, and trade unions processing the work notice.

General guidance on complying with the data protection legislation can be found on the Information Commissioner’s Office (ICO) website:

Resources for employers

A guide to the data protection principles

Accountability Framework

When sharing personal data with trade unions, due regard should be given to minimising the data that is shared, ensuring that only personal data necessary for identifying the relevant workers is shared, and that it is shared securely.

Employers and trade unions can consider entering into a data sharing agreement for the data sharing between them in relation to work notices, where appropriate. Data sharing agreements are not a legal requirement but are considered good practice where routine data sharing is to take place. Where such agreements between an employer and a trade union already exist, these can be reviewed and expanded upon to include data sharing under the work notice provisions. See the ICO’s Data sharing: a code of practice for the types of information data sharing agreements should contain.

10.3 Providing privacy information to workers

It is likely that employers and trade unions will need to update or supplement their privacy information to incorporate the processing of worker data for the purpose of issuing the work notices. It is a strict requirement under Articles 13 and 14 of the UK GDPR to ensure that data subjects are aware of how and why their personal data is being processed. Employers and trade unions should make workers aware of this use of their personal data before their data is included within a work notice. Employers should include in their privacy notice for workers: (a) their personal data may be processed as part of minimum service level requirements in accordance with the Act; (b) the possibility that their personal data may be used within a work notice; and (c) the possibility that their personal data may be shared with trade unions as part of any industrial action. Trade unions should include in their member privacy notice that they may collect their personal data from their employer in the form of a work notice.

Unions should also be aware that they may process the personal data of non-members who are included on a work notice and so should have privacy information which covers this processing. This processing should be short-lived and the data of non-member workers contained in a work notice should be deleted as soon as it is deemed irrelevant to the union.

At the point at which the employer notifies the worker they have been identified on a work notice, it would also be good practice to include a copy of, or reference to, the relevant privacy notice which covers this use of worker data.

Workers are likely to be interested in how their personal data is being processed, who has access to it, and understanding the selection process for work notices. Employers and trade unions should therefore be as transparent as possible about their policies and processes, ensuring privacy information is readily accessible and intelligible for the audience; and be prepared to respond to data subject rights requests, and/or Freedom of Information (FOI) requests if they fall within scope of the Freedom of Information Act.

See ICO guidance:

What privacy information should we provide?

Records of processing and lawful basis

10.4 Data minimisation and proportionality

At each step in the process, data minimisation principle should be considered by employers and trade unions. This means only sharing the personal data necessary to achieve the purpose behind the sharing. Employers should consider what the minimum amount of information required is for the union to be able to identify a particular worker. In most cases, this is likely to be the worker’s name and the role they are performing. Where there is more than one worker with the same name, an additional identifier may be required, such as the worker’s job title.

Employers and trade unions should also consider whether they can pseudonymise the data by using identifiers other than name to accurately identify workers. For example, an employee number or other unique number. Both parties would need to already hold this data. As discussed in the Preparation section of this guidance, this type of arrangement should be discussed and agreed between employers and trade unions prior to any strike action. While pseudonymised data remains personal data, this will help to ensure that a proportionate approach is taken to the use of personal data for the work notice.

10.5 Documentation and policies

One of the key principles provided for by data protection legislation is ‘accountability’, which requires organisations to demonstrate that they process personal data in line with the legislation, which is partly done through documenting processes and procedures in policies. Employers and unions should consider putting in place a policy which covers how it will comply with its data protection obligations when processing personal data in accordance with the Act.

Each organisation’s Record of Processing Activities (ROPA) will also need to be updated to include details of this type of processing.

It is good practice to carry out a data protection impact assessment (DPIA) to assess the risks of the data processing involved in work notices, and to consider what mitigating steps can be implemented. If the processing is considered to be high risk, then a DPIA is mandatory. See ICO guidance on DPIAs.

10.6 Workers’ data protection rights

All workers have a number of individual rights (in some cases which may be dependent on the circumstances) available to them in respect of their personal data under data protection law, including a right of access to their data (subject access request), a right to have their data rectified where it is deemed to be incorrect and a right to object to how their data is being used. Employers and trade unions should ensure that appropriate processes exist for managing these requests, and that such requests are responded to according to the timeframes and provisions which are set out in data protection law.

The ICO has guidance aimed at employers responding to individual rights requests as well as freedom of information.

10.7 Lawful basis for processing data for a work notice

Employers and trade unions must have a lawful basis for processing personal data under UK data protection law.

There are six lawful bases for processing personal data which are detailed at Article 6 of the UK GDPR. Employers and trade unions need to be clear which lawful bases apply when processing personal data in relation to work notices for the purpose of ensuring a minimum service level. Different lawful bases can apply to distinct data processing operations.

ICO guidance on lawful basis

ICO lawful basis interactive guidance tool to help determine which lawful basis is most appropriate

We have provided some guidance for employers and unions below. Note that this is guidance only and the statutory obligation to determine which lawful bases are applicable to any given processing activity lies with the employer/union.

10.8 Employers

Employers may rely on different lawful bases for different parts of the process.

Preparation

Where the employer is processing personal data to model a strike, or to assess what level of work is needed to meet the minimum service level and the numbers of workers required etc, they will need to identify an appropriate lawful basis for processing the data for this purpose. This may differ from the lawful basis relied upon to identify the workers to issue the actual work notice.

Decision to issue work notice

Once a decision has been made to issue a work notice, employers will need to process personal data to make decisions about which staff are to be included within a work notice. They must determine the lawful basis for this data processing. ‘Legal obligation’ would be an appropriate lawful basis to use for this activity. An employer may also choose to rely on ‘legitimate interests’ for this processing or ‘public task’ if it can be considered that the employer is performing a task in the public interest.

Processing health or sickness data

If health or sickness data is being processed for the purposes of determining who to include in a work notice, to ensure that workers selected to work on a strike day through a work notice can work effectively and safely on the strike day, or to ensure that workers are not treated unfairly on the basis of, for example, a disability, the employer will need to identify an additional lawful basis under Article 9 UK GDPR.

Sharing the work notice with the trade union

‘Legal obligation’ can be used for sharing the personal data within a work notice with trade unions and for any subsequent processing of the personal data by the employer thereafter.

As stated earlier, the work notice must not identify whether individuals are a trade union member or not, and it should not include other special category data. Employers should nevertheless be aware that any processing activity which identifies the trade union membership status of a worker will be likely to constitute the processing of special category data and so they should be able to identify an additional UK GDPR Article 9 condition in such circumstances.

10.9 Trade Unions

Upon receipt of a work notice a trade union will need to identify a relevant lawful basis to hold and process the personal data for the purposes of identifying trade union members from the data contained within the notice, and for their subsequent engagement with those trade union members in ensuring work notices are complied with. Trade unions will likely be relying on ‘legal obligation’ as the lawful basis for this activity, to the extent that the processing is necessary for compliance with the Act. Or where the processing is not necessary for compliance with a legal obligation, the most appropriate lawful basis will likely be a mix of contract (that is the membership of the union) or ‘legitimate interests’ that is the processing is in the union’s legitimate interests.

In determining which individuals in a work notice belong to the relevant union, the union will be processing those union members’ personal data in relation to their trade union membership, which constitutes special category data and will require an additional lawful basis at Article 9 of the UK GDPR. The most appropriate lawful basis is likely to be ‘legitimate activities’ (Article 9(2)(d) UK GDPR), which covers the activities of trade unions to the extent they are processing the personal data of their members.

10.10 Necessity

Most of the lawful bases being relied upon must meet the ‘necessity’ test and all processing of personal data should also be ‘proportionate’ and ‘justifiable’. This means that the preparation, compilation and sharing of a work notice should be considered necessary in the circumstances, having fully considered whether a minimum service level can otherwise be secured without the need for a work notice.

For example, in relation to ‘legal obligation’ the ICO guidance states, ‘If you can reasonably comply without processing the personal data, this basis does not apply.’

For ‘public task’ the ICO guidance states ‘If you could reasonably perform your tasks or exercise your powers in a less intrusive way, this lawful basis does not apply.’

If work notices are considered necessary by the employer then the personal data used in the process should be kept to the minimum that is required for making an informed decision as to which workers are to be included on the notice.

10.11 How can trade unions use the work notice data?

The data in the work notice can be used by trade unions to take the necessary reasonable steps to ensure that all its members identified on the work notice, comply with the work notice. The data can also be used by the trade union to monitor the operation of the work notices and to assess whether the employer has complied with the Act when issuing it.

All personal data in the work notice must be protected. Upon receipt of the work notice the trade union should ensure that their trade union members on the work notice are identified as soon as reasonably practical as set out in the Code of Practice on Reasonable Steps. As soon as members have been identified, the personal data of non-trade union members should be disposed of safely and securely, as quickly as possible. This could include anonymising the data so that non-trade union members can no longer be identified. The personal data of non-members must not be retained by the trade union. There are no grounds to justify the further processing of non-member personal data for any purpose once identification of trade union members is complete. The work notice data must not be used by the trade unions for any other purpose other than in relation to work notices.

It will be for the employer and the trade union to ensure that the data they process is held securely, in line with current data protection law. Both will need to have appropriate technical and organisational measures in place designed to ensure compliance with their data protection obligations, which may include:

pseudonymising see section 10.4 on data minimisation and encrypting personal data;
ensuring confidentiality, integrity, availability and resilience of systems and services;
ensuring that availability of and access to personal data can be restored in a timely manner after an incident; and
regularly assessing and evaluating the effectiveness of such measures adopted by it.

10.13 How long should the data be stored for?

Employers and trade unions will need to determine an appropriate length of time to store work notices, which should be in line with their own retention schedules and policies. Employers and trade unions will need to have an appropriate rationale for how long they keep personal data which they set out in a policy. Retention schedules should be updated to include work notices.

ICO guidance on storage limitation

This should be a length of time which enables checks, for example, to ensure that no more workers are named than reasonably necessary or to ensure that no individual is repeatedly named in work notices where there are multiple days of action during a dispute, unless this is justified. This would need to be balanced against holding the data for no longer than is necessary.

10.14 How should data relating to work notices be destroyed?

It will be for the employer and the trade union to ensure that they destroy data securely, in line with current UK data protection requirements.

10.15 Can special category data be processed?

Special category data is personal data that is considered to be particularly sensitive and includes information about an individual’s:

Trade union membership
Political opinions
Race or ethnic origin
Religious or philosophical beliefs
Genetics
Biometrics
Health
Sex life
Sexual orientation.

The Act specifically states that trade union membership must not be taken into account when selecting individuals to include in the work notice. The Act does not therefore provide a lawful basis for the employer to process such data for the purposes of work notices. The trade union will need to process trade union membership data to identify which workers identified on the work notice are members of that trade union. The trade union will therefore need to ensure they comply with at least one Article 9 condition.

This guidance makes clear that the employer should not share any personal data with the trade unions during the consultation on the work notice and before a work notice is issued.

The employer should not share special category data with the trade union, for example, to provide justification for who is included in a work notice. If the employer or trade union inadvertently obtains special category data, for example, while in correspondence during the consultation on the work notice, the employer or trade union must delete that information and cannot use it in finalising the work notice as there will be no lawful basis for processing that data.

If the employer inadvertently obtains data about trade union membership, for example, from the trade union while discussing the work notice, the employer cannot store or use that information in finalising the work notice as the Act does not provide a lawful basis for processing that data and specifically prohibits the employer from taking trade union membership or activities into account in selecting individuals to include in a work notice.

10.16 Can automated decision making be used when preparing a work notice?

Special care must be taken if using automated systems for selecting staff for inclusion on work notices. Article 22 of the UK GDPR sets out rights related to automated decision making and profiling. This contains additional requirements to protect individuals when carrying out solely automated decision making (that is decision making that does not involve human input) that has legal or similarly significant effects on them. Identifying an individual in a work notice has a legal effect in that the individual will lose their automatic protection from unfair dismissal if they take strike action despite being named in a work notice and this does not comply with the work notice. Employers should consult the ICO guidance if considering using automated decision-making tools to prepare a work notice, and be conscious of the right of workers to request manual intervention in the decision-making process. Employers will need to provide meaningful information about the logic used to make the ‘decision’ in the transparency information provided, and it is recommended that a data protection impact assessment is performed for all such processing. If the risks are assessed as high, then a DPIA is mandatory. Privacy policies should be updated if automated decision making is used.

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