Wednesday 1st February saw the first teachers’ strike in many years. With future dates for strike action to take place already published, we wanted to provide you with clarity over a data protection question which has cropped up regards to the union membership of striking staff and the way schools communicate closures and partial closures for strike days.
The question is:
“has the school inadvertently let parents and the wider public know which union teachers are in as a result of how they have communicated the closure/part closure due to the strike action that is taking place?”
As you may know, union membership is ‘special category data’ which means its use “could create significant risks to the individual’s fundamental rights and freedoms” and it therefore “needs to be treated with greater care”.
As such, it is important that you treat data about individuals’ union membership securely and keep it confidential.
It has been suggested that if you choose to close specific classes because the teachers of those classes are union members and you suspect they will strike in the future, this is a ‘de facto communication of union membership’ to the parents/carers at your school, and, therefore, to the wider public.
However, following detailed discussions with the ICO, if you have, by inference, revealed the identity of which staff are in a certain union, we believe that this doesn’t necessarily constitute a breach as there is a legal basis for sharing this information under certain circumstances.
SchoolPro TLC and the ICO agree the following legislation accounts for this:
Firstly, legal basis under Article 6 which would be as follows:
- Article 6 (e) – public task – the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.
Secondly, because union membership is special category, you also have to have a condition under article 9 which would be:
- Article 9 (g) – Reasons of substantial public interest (with a basis in law)
Finally, a specific public interest condition for Article 9 (g) needs to apply which would be in this case:
- 6. Statutory and government purposes
So, there has to be a statutory reason in law why you are making that information public. That would be found in the following statutory guidance:
The guidance itself states that:
“In the event of strike action at a school, the Department for Education expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.”
In order for this to apply, you would be required to show that it was necessary to communicate with parents in way that made it possible to identify the striking teachers (i.e. that it was not sufficient to send out a general message from which it was not possible to identify individual striking teachers).
This final part will depend on the individual conditions within each school. It is likely that the smaller the school, the harder it will be not to reveal the identity (even by inference) of striking teachers and therefore union membership unless you simply close the whole school.
Ultimately, there is a decision to be made. If you are partially closing the school, can you do it and communicate it in a way that does not reveal the identity of striking teachers?
If there is no other alternative, you should be able to rely on the above legal basis to do so. We would recommend that if this is the situation for you and your school, you consult with us as your DPO first and foremost.
If you ultimately decide that this is the route you need to take, log this Data Decision and the reasons why it is necessary. And this should be communicated clearly to your staff.
SchoolPro TLC Ltd (2023)
SchoolPro TLC guidance does not constitute legal advice.
SchoolPro TLC is not responsible for the content of external websites.