ASLEF Consultation Response - Department for Business & Trade - Minimum Service Levels: Draft Work Notice Guidance

ASLEF's response to the Department for Business & Trade's consultation on their draft work notice guidance for MSLs
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The Department for Business & Trade carried out a selective consultation which closed 29/09/23 on their draft guidance on issuing work notices as part of the process for providing a minimum service level. 

Below is ASLEF's response:

ASLEF Response – Department for Business & Trade – Minimum Service Levels: Draft Work Notice Guidance

  1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing just under 22,000 members in train operating companies, freight companies as well as London Underground and light rail systems.  
  2. As the Strikes Minimum Service Levels Act 2023 (the Act) will come in to force on the railways it will essentially remove the right of our members to take strike action and as such we have engaged with the Department for Transport and the Department for Business & Trade to highlight our opposition to and concerns with this draconian piece of legislation.  
  3. We have also been concerned with the way that the Act was rushed through the Houses of Parliament and it has been clear that the relevant government departments have been scratching their heads as to how the Act can even be implemented and as yet, no regulations have been laid before the house to give us a greater understanding of how the government intends to implement the Act.
  4. Ultimately we expect that this legislation and guidance will not be used to infringe on the ability of workers to carry out their roles safely. Safety is key to operations on the railway and we cannot see how the Act balances removing the ability to strike and the added pressures this will create for workers with safety at work. When safety is overlooked on the railways the ultimate price is the loss of life, this legislation and guidance risks endangering both the traveling public and staff on the railways and we fully expect employers and workers to utilise their ‘worksafe’ procedures and if necessary halt working if they are presented with a potential loss of risk control to protect both themselves and the travelling public from danger. They should be able to do this knowing that safety takes precedence without the fear of being dismissed for taking action to protect lives.        
  5. With regards to the rushing through of legislation which will restrict workers in exercising their right to strike, we are concerned that the Department for Business & Trade has decided to not consult the unions directly on the draft guide for employers, trade unions and workers on issuing work notices. We were made aware of this draft document by the TUC with whom the department had shared the document. We have considered the draft document and have decided that is appropriate for us to also feedback on the draft.        

The process for producing a work notice      

  1. As we are yet to see the regulations for MSLs on the railways we are not clear on the number of members that are to have their right to strike removed on a strike day, we can however comment on the current draft guidance for employers to set up a process for producing a work notice.           
  2. As this is all non-statutory guidance there is an over dependence on employers to do the right thing when engaging with their workers and the worker’s union with whom they are in dispute. As such, we are concerned that whilst an employer ‘should’ be able to demonstrate a proportionate, clear and fair process to selecting who’s right to strike they will remove, there is no obligation on them to do so. The guide also states that employers ‘may’ want to avoid naming the same workers in work notices when there are multiple strike days. However, due to the nature of roles on the railways and the understaffing of certain grades, there is the potential for a worker to have their right to strike effectively removed altogether if there are multiple strike days and not enough staff to cover their role, this could create a deeply concerning situation where certain job roles and workers are effectively banned from taking striking action.
  3. There is a small sentence on page 8 that states “There is no statutory duty on the employer to issue a work notice.” after which the guide goes on to explain what factors an employer may want to consider when deciding whether to issue a work notice or not. We believe that there should be more detail on the rights of the employer to choose not to issue a work notice, as we believe they would be concerned of possible litigation for not providing a minimum service and unaware that they are within their rights not to. We know for example that the Scottish[1] and Welsh[2] Governments have no intention of issuing work notices. However, as the current industrial disputes seem to be centred around the Westminster government’s actions and the pig headedness of ministers, employers may only see work notices being issued under the Act since the most likely first test cases for this Act will be with those in dispute with the UK Government / the employers operating under the government’s control. This could lead employers to not fully understand their ability to choose to not issue a work notice and we believe greater emphasis and clarity should be provided to employers to enable them to reach resolutions to disputes instead of prolonging them and souring industrial relations.          
  4. There will undoubtedly be debate around what is considered a ‘reasonable’ number of workers to include in a work notice and the ability for employers to factor in sickness, inclusive of potential sickness based on historical records, creates an opportunity for employers to abuse what would be considered ‘reasonable contingency’. This has the potential to remove a workers right to strike simply because in the past a higher number of workers on the chosen example day may have been off sick. The use of contingency to pull in other workers takes too lightly the fact that a worker will lose their right to strike on the off chance that another worker who has also had their right removed is off sick on the day of the strike.    
  5. Again as this is non-statutory guidance, employers are encouraged and not mandated to review the number of workers identified in work notices to ensure that it is not exceeding a reasonable level. We are concerned that employers may not chose to review their process and may continue to remove the right to strike from more workers than is in our view reasonably necessary, greater emphasis should be placed on reviewing processes to avoid worsening industrial relations and prolonging disputes.          

Consultation with unions

  1.  Quite rightly the guide outlines that employers must consult with unions on the number of workers to be named and type of work to be carried out and that employers must have regard for the union’s views before finalising a work notice. There is however, still a lack of certainty on timings for consultation and it is all left to the employer to decide. The recommendation in the guide is as soon as possible but ultimately as the work notice has to be issued no later than 7 calendar days before a strike day the employer could theoretically consult the union 8 calendar days before a strike day, leaving the union less than one whole working day to consider the employer’s plans. It is not clear if the employer could truly have regard for the views of the union with such a short turnaround and more emphasis should be placed on the employer to consult with the union in a timely manner.           
  2. As the guide references, employers have 7 calendar days for the work notice to be issued, there may be instances where there is a weekend and even a bank holiday which fall into those 7 calendar days and as mentioned above, emphasis must be placed on the need for the employer to consult with the union in a timely manner to avoid the employer using the weekend and bank holiday as an excuse for not properly consulting with the union.

Work Notices         

  1. We expect the work notices to be explicit in the type of work that a worker is expected to do. The guide talks about the possibility of re-deploying or re-tasking workers if needed due to changes in operational circumstances on a strike day, again we would expect the employer to be explicit in that a worker who has received a work notice may only be re-deployed or re-tasked in line with their contract of employment and with the work required in a work notice. This will help to avoid any poor practices with employers re-deploying or re-tasking workers in ways which could lead to unsafe working conditions or are in contradiction of the Act as the work was not part of the work notice.      
  2. Currently the guide reads that a work notice ‘should’ be issued in writing to a union, we believe this should read as ‘must’. If a worker is to have their right to strike removed and face the possibility of being dismissed then the employer must issue a notice in writing to the relevant union.
  3. Similarly the guide states employers ‘should’ notify workers that they have been identified in a work notice, whilst we understand that the Act does not provide a legal requirement for the employer to notify workers, which in our view is a massive flaw, more emphasis should be included in the guide to encourage employers to notify their workers that they are removing their right to strike. The guide also touches on the ability of a worker to appeal their inclusion in a work notice however the guide only states that this is to be resolved between the worker and the employer, ideally their union should also be involved to ensure that employers are not dismissing genuine concerns raised by workers around their inclusion in work notices. Further to this, employers should also clearly outline to their workers what their rights are with regards to appeal when informing them that they have been included in work notices.       
  4. The fact that there is no provision for the withdrawal of a work notice in the Act highlights the issues caused by a government rushing through legislation. The guide should offer greater guidance to what employers and unions should do if an employer decides to withdraw a work notice.           
  5. We believe that emphasis should be placed on the worker’s requirement to only do the work as outlined in the work notice and that they would not be required to work in circumstances they would not otherwise be required to under their employment contract.

Disciplinary Action           

  1. Greater emphasis should be placed on the discretionary nature of disciplinary action which an employer may or may not choose to take. We are concerned that overzealous employers and anti-union employers will see dismissal as the first course of action for any worker that tries to exercise their right to take strike action after being named on a work notice. This would be in contradiction of the opinion of Conservative minister Kevin Hollinrake who voted for the Act and stated that “The reality is that nobody will be sacked as a result of the legislation”[3] during a debate on the Bill and proposed amendments from the House of Lords on Monday 22 May 2023. However despite the minister’s opinion, the Act allows for employers to dismiss a worker for taking strike action.
  2. To avoid employers dismissing workers, despite the Act allowing it, in contradiction of the opinion of ministers that voted for it. The guide should emphasise the need for employers to follow ‘full and fair procedure during disciplinary action’ as required by law and go further than the guide’s current wording of encouraging employers to be “fair and reasonable” when considering disciplinary action.    

Data Protection      

  1.  As the Act obliges and the guide outlines, employers and trade unions will be sharing data on individuals via the sharing and processing of work notices. We hold concerns that there are not enough safe guards for the sharing of trade union data which is special category data under Article 9 of the UK GDPR. It is quite possible for unions to be made aware of union membership of workers listed on work notices who are not members of the receiving union in a work place / grade that is represented by more than one union. The guide should outline, when this is the case, if this requires an Article 9 condition to be complied with.    
  2. The guide requires further clarity on the need for employers to destroy inadvertently obtained data on union membership. The deletion is implied by the guide stating “the employer cannot store or use that information in finalising the work notice…” the current wording of the guide however does create ambiguity around the storing of this data, as an employer could interpret the wording to mean that it is okay to store the data if it is not used for finalising a work notice, as such the guide should explicitly state that the data is to be destroyed.   
  3. We hold concerns with the guide’s introduction of the possibility for an automated process to prepare work notices. The guide should be clearer in outlining that there is a requirement on the employer under Section 14 of the Data Protection Act 2018 to notify the workers that are included on an automatically compiled work notice that the decision to remove their right to strike was based on automated decision making. It is also not clear how the worker could have a meaningful right to request reconsideration in this circumstance. Section 14 of the Data Protection Act 2018 affords them one month, whilst in reality they will have a few days due to the short timescales for provisions of a work notice or subsequent variation of a work notice.           

Mick Whelan
General Secretary
77 St John Street