Guidance setting out the process for issuing work notices to ensure minimum service levels are met during strikes has been published.
As the government plans to enact the Strikes (Minimum Service Levels) Act 2023 before Christmas, the Department for Business and Trade has published a work notices guide for employers, trade unions and workers, which explains the purpose of a work notice, duties for workers and trade unions, and what employers should do to prepare a work notice.
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.
Earlier this week the government published a draft code of practice for trade unions, setting out what they should do if an employer issues a work notice.
The Minimum service levels: issuing work notices, a guide for employers, trade unions and workers guidance states that employers should consider whether they can achieve the minimum service level without issuing a work notice, but take 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.
It states that work notices must not include more workers than necessary to provide a minimum service.
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
- 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.
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The guidance says: “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.”
If an organisation decides to issue a work notice, it must be given to the union a minimum of seven calendar days prior to the strike day, unless the union has agreed a later day. Once issued, the work notice can be varied by the employer before the end of the fourth calendar day prior to the strike, unless a later day has been agreed, which will allow them to make changes for reasons such as sickness, a change in circumstances or administrative errors.
Work notices should be issued electronically and in writing, and the trade union should acknowledge its receipt promptly.
Employers should notify each of the workers on the notice individually. They should specify the work the employee will be required to carry out and the consequences if they do not comply with the work notice.
The guidance says: “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 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.”
Workers who do not comply with the work notice will lose their automatic protection from unfair dismissal from participating in strike action. The guidance says employers have discretion as to what form of disciplinary action is taken, as it is likely to be considered unauthorised absence.
The guidance states that 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.
A work notice may be issued for each day that a strike takes place, to cover several strike days, or the entire period related to the strike action.
TUC general secretary Paul Nowak said: “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.”
He added: “Every decent employer must reject these unworkable new laws. That means doing everything in their power to avoid using this counterproductive legislation.”
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