Last week, a parent took to twitter with this message: My children’s school has remained open during strike days. The Headteacher has just emailed ALL parents naming the two teachers who took strike action. Surely this isn’t allowed!?
A headteacher at a different school did the same thing and, according to the BBC, 'quit amid an ongoing probe into an alleged data protection breach'.
Twitter 'experts' (aka the general public) suggested the headteacher had acted 'illegally', that being a member of a trade union was a 'protected characteristic' and that the teachers had been 'victimised'. Others said that this information was protected by data protection laws and shouldn't have been disclosed.
What is the legal position?
Let's start with data protection. Employers must comply with the GDPR and Data Protection Act 2018 and process data lawfully, fairly and transparently. They need one or more of the six legal bases available for processing each 'type' of information. The most relevant in an employment context are complying with a contractual term (such as deciding how much to pay the employee), being subject to a legal obligation (such as complying with SSP or family related leave rights) or because they have a legitimate interest in processing their data.
Information about someone's trade union membership is special category data and employers have to comply with additional safeguards. Only one of these seems likely to be relevant to this situation: where the individual has made the information public already. ICO guidance makes it clear that if an employer wants to rely on this, they need to be 'confident that it was the individual themselves who actively chose to make their special category data public and that this was unmistakably a deliberate act on their part'.
So, unless these teachers had made it clear in a public forum that they were trade union members their employer will be in breach of GDPR for revealing their union membership.
Even if their union membership is public knowledge there still needs to be a reason for telling parents that the teacher is on strike – the use of the data needs to be reasonable and proportionate. If there is no valid reason for notifying parents who the striking teachers are then again, the information can’t be revealed.
I asked our data protection expert, Joanne Bone for her view. She said that "the conditions for use of special category personal data are much more limited and unless the teacher is open about their trade union membership, there isn’t really one that would permit telling parents in this way – at least pre-strike day. If the teacher stands on the picket line, the school could argue that they have made their trade union membership public knowledge. But if they just didn't turn up for work because they were on strike that wouldn't apply because they could be off work for other reasons such as illness or due to caring responsibilities etc. In any event there needs to be a reason the information is given to parents. Any disclosure of personal data by an employer needs to be for an appropriate reason and proportionate. Employers can't just tell parents to vilify members of staff."
The law around this is contained in section 146 Trade Union and Labour Relations (Consolidation) Act 1992. It protects workers from being subjected to a detriment if the employer's main purpose is 'unlawful'.
Let's unpick that as it's more complicated than might appear at first glance.
An unlawful purpose is where an employer does something to prevent, deter or punish a worker for being a member of a trade union or from taking part in 'activities' of a trade union at the 'appropriate time'. Giving parents the names of striking teachers would meet the first part of this description - it's certainly a form of punishment and is also (presumably) designed to deter them from future strike action. But, it doesn't cover industrial action. That's because strikes are not deemed to take place at the 'appropriate time'.
The Court of Appeal in Mercer v Alternative Future Group Limited, said that s146 doesn't provide any legal redress for workers who suffer a detriment short of being dismissed because they have gone on strike. The Court acknowledged that this is incompatible with Article 11 of the European Convention on Human Rights (which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so) but said that it couldn't re-write domestic legislation to comply with this. [The EHCR is implemented in the UK by the Human Rights Act 1998 (which is currently under attack from the government).]
The Supreme Court is due to consider the Mercer case later this year and could reach a different decision. But, as the law currently stands, employers can penalise members of staff who take part in industrial action with apparent impunity. The only protection workers have is against being dismissed for taking part in lawful industrial action.
Informing parents about someone's decision to strike could create an intimidating, hostile, degrading, humiliating environment. But, the Equality Act 2010 requires more than that and only prohibits harassment if it is related to a protected characteristic. Membership of a trade union isn't a protected characteristic and there is no basis for a claim of this nature.
The Equality Act does not protect an employee from being bullied - unless their behaviour amounts to harassment. However, the employer/employee relationship is based on a mutual trust and confidence between the parties. Sending out this sort of message is likely to damage that relationship for a number of reasons. It could create a toxic working environment for the teachers, expose them to the ire of unhappy parents, and make it very clear that the head doesn't respect them or the decisions they have made.
The teachers could resign in response and claim constructive unfair dismissal. However, they need to have worked for the school for at least two years to bring this type of claim.
Other issues to consider
1. Strikes are meant to cause disruption. Workers taking part in strike action don't have to tell their employer they are will be withdrawing their labour. There's nothing to prevent employers from asking if they are taking part in lawful strike action, but they aren't under any obligations to say one way or the other, and they shouldn't be pressurised into doing so.
2. Workers don't have to be a member of the union to go on strike. If the union is taking lawful strike action non-union members are protected from dismissal and have the same rights as union members.
3. Employers can now use agency staff to provide cover for striking workers.
Government plans to reduce the disruption caused by strikes
The Strikes (Minimum Service Levels) Bill is currently going through parliament. It will amend the Trade Union and Labour Relations (Consolidation) Act 1992 and enable the government to introduce regulations to impose minimum levels of service in the event of a strike. You can read the detail here.
There may be other changes afoot. The Mirror reported that teachers may be forced to tell their employers if they plan to strike. According to a government spokesman the government says that 'it is ridiculous that unions are able to add to the disruption caused by refusing to provide the basic information need to make contingency plans [and] if this is something that is going to be a regular tactic, then we will have to act on it'.
If the government does introduce new laws, it's unlikely to limit them to teachers! We'll keep you updated if this proposal goes any further.
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"The Information Commissioner's Office (ICO) has been informed of the breach," it said, "and we are investigating the breach in-line with the ICO's timescales."