What is the government proposing?

This consultation sets out proposals for a minimum service level in schools and colleges. This would bring schools and colleges within the remit of the Minimum Service Levels Act along with the corresponding code of practice and the non-statutory work notice guidance which we brought forward by the government earlier this year.

The Act has created new powers that will allow the government to force union members to go in to work on strike days under threat of dismissal, thus undermining strike action. Under the Act, employers must issue a ‘work notice’ document to the trade union, which identifies the workers required and the work they must carry out. Trade unions must then support the implementation of this work notice through provisions contained in the legislation and accompanying guidance. A trade union must give 14 days' notice of industrial action. An employer must give the trade union at least seven days' notice of any work notice. The union must take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.

NAHT contends that this legislation is draconian, unnecessary and unworkable. While taking industrial action is a last resort for workers seeking to bring an employer to the table for meaningful negotiation, workers’ ability to withdraw their labour underpins the successful resolution of many disputes before strike action has taken place. The recent announcement will allow the government to force union members to go into work on strike days under threat of dismissal, thus undermining strike action. It will damage workplace industrial relations and it will enable hefty bankrupting fines to be placed on unions.

What are we asking members to do

We are asking members to respond to this consultation.

While we are dismayed at the underhand and deceptive manner in which this consultation has come about, it is essential that we make as much noise as possible in firmly showing our opposition. The time frame for the consultation falls short of the standard 12-week consultation period and it falls during the Christmas holiday period; this is yet another underhand tactic to discourage responding, once again highlighting the government’s lack of commitment on genuinely engaging with social partners on a matter of such significance.

Despite this we must respond. We will be encouraging members to submit a response to the online survey as well as supplementary written responses. We will provide a template of model answers for the survey shortly.

What is our position?

Forcing minimum service level requirements on the education profession is contrary to reason. The impracticalities which the government has failed to adequately address suggest a worrying lack of understanding about how the education employment system operates and a desire for the government to maliciously undermine the work of trade unions.

In our consultation responses to the government’s statutory code and to the guidance on the Minimum Service Level Act earlier this year, we raised the concerns outlined below. As we fully consider the consequences of the consultation document issued yesterday we will issue further guidance on our position but in order to highlight to members the extent and depth of our concerns to date it may be helpful for members to consider the points below.

1. Work notices will undermine worker rights

Union members who breach a work notice may be subjected to dismissal without protection.

Employees are currently protected against unfair dismissal for the first 12 weeks of a lawful strike. The legislation removes that protection from individual workers named in a work notice who do not comply.

The provisions for appealing a work notice are inadequate

There is no provision for withdrawal of a work notice and the provisions for appealing a work notice are entirely inadequate. A worker can have a ‘constructive conversation’ with their employer if they feel there is a ‘genuine reason’ why they should not be named in the work notice; this not a fair or effective means of appeal, there is no definition for what may constitute a ‘genuine reason’  or a ‘constructive conversation’.

The code does not provide an effective remedy to challenge a work notice or a means of fairly negotiating

The legislation makes no references to the possibility of minimum services decided by collective negotiations and agreements and fails to designate an independent body to resolve any disputes. The legislation does not allow for any meaningful consultation with unions, there is no obligation to consult about the particular individuals identified in the work notice. It is stated that an employer must 'have regard to any views expressed by the union in response' to this consultation; they can effectively ignore them if they so choose.

2. The proposals undermine data protection

The legislation and accompanying code and guidance will increase the likelihood of protected data containing union member details being released. This may put union members in jeopardy

Unions will be required to engage in discussion with employers as to the design of work notices thereby potentially sharing information that could identify union membership. This could put both the employer and the union at risk of sharing special category data under GDPR thereby potentially breaching legal requirements protecting workers from being subjected to detriment related to trade union membership or taking part in trade union activities. Trade unionists have previously been blacklisted and refused employment opportunities based on union membership, so disclosure of such information can have devastating consequences.

This could be used to target strike leaders to disrupt preparations for an effective strike, it will inhibit the ability of key stewards with important roles in ensuring pickets and rallies are safe.

Union leaders, key organisers and picket supervisors may be targeted by employers and instructed to work. The targeting of such workers not only undermines fundamental freedoms but it puts the safety of the picket at risk. Workers have a right to protest peacefully, and states have a duty to respect, facilitate and protect this right. This means they shouldn’t interfere with protests, unless there is a legitimate threat to the safety and rights of others.

Unscrupulous employers will be able to take targeted actions to disrupt the organisation of strikes

Workplace union leaders are often known to employers. The legislation enables employers to name union leaders and key union organisers and force them to work. There are no protections to stop a vexatious employer from altering the work notice multiple times at short notice in order to disrupt the organisation of strikes.

3. The proposals undermine fundamental trade union rights

The legislation does not allow for union consultation

The legislation and guidance give little weight to the perspective of a trade union. They contain no defined timescale for employer consultation with unions and little encouragement, let alone obligation, on employers to take proper account of the views of unions when devising work notices.

It is stated in the legislation and accompanying guidance that the employer must ‘have regard’ to any views expressed by the union with regard to the consultation. Effectively this means that the employer can ignore the views of the union if they choose to do so. Indeed, the guidance emphasises several times that the employer may disregard the views of the trade union.

This language in the guidance is vague, employers must carry out consultation in ‘sufficient time’ and ‘as soon as reasonably practical’. Again these are arbitrary measures without definition that may be exploited by an employer wishing to frustrate union action.

The guidance states that ‘a minimum of seven calendar days for the employer to prepare the work notice, consult on the number of workers and the work required with the union and finalise and issue the work notice to the union.’ This is a substantial amount of work to be undertaken in a highly limited time frame.

Unions will face potentially bankrupting penalties for mistakes minor or otherwise.

There are over 10,053 employers of school staff in England. Expecting a trade union to be able to comply with the necessary steps to a near-perfect degree of accuracy with all employers in a matter of a few days is impossible. There is no mention in the code of how unions will be compensated or supported for the bureaucracy that is required or what help will be provided where unions do not have the capacity to fulfil their obligations.  

The consequences of failing to comply with the Act are seismic for workers and trade unions; jobs may be lost and trade unions could be rendered bankrupt through hefty fines.

Unions will be forced to undermine their own purpose and actions

The statutory code forces unions to issue communications directly in opposition to their lawfully held position. It states that unions should ‘encourage’ compliance with work notices. It further undermines unions by asking them to tell members to ‘disregard’ strike communications from the union. It also suggests using local officials to send out notices – it must be the role of government to communicate these messages, not unions.

The timeframes and bureaucratic requirements for unions are unworkable

The statutory code requires the union to generate individual communications by way of ‘compliance notices’  for each member affected. As union communications can only be issued once the deadline for employer changes has passed, this leaves only four days for the union to ensure all compliance notices are correct and received.

Conclusion

NAHT contends that the government should repeal the legislation, learn from other nations and create ‘a culture of social dialogue and balanced cooperation through the introduction of sector-wide collective bargaining, together with the clear legal recognition of a positive right to strike’ (collective of employment law experts: Alan Bogg, Professor of Labour Law, University of Bristol, Keith Ewing, Professor of Public Law, King’s College London, Ruth Dukes, Professor of Labour Law, University of Glasgow).