Teacher strikes | 10 things schools need to know about industrial action
Written by Jane Hallas on 9 February 2023
Industrial action is a major concern for schools right now, and the prospect can cause a great deal of confusion and stress.
With a swathe of recent teacher strikes across the UK, here are 10 key things school leaders need to know to in order to prepare for and deal with industrial action, while remaining on the right side of the law.
1. 'Industrial action' isn't clearly defined
Industrial action is a type of protest taken by workers to improve their working conditions and pay. It can take the form of strikes, working to rule, sit-ins, etc.
In order for unions and their members to benefit from legal protection, industrial action must be taken in relation to a trade dispute, i.e. a conflict between an employer and its workers, or between workers and the government, regarding their terms and conditions of employment.
In the case of the recent strike action, the dispute isn’t with individual schools per se, although they will feel the impact of it; it’s with the government, or more specifically the Department for Education (DfE), as the dispute relates to the national terms and conditions set by the DfE.
While there’s no clear legal definition of industrial action, strikes, as well as action short of strikes (working to rule, for instance), can still be considered a breach of contract if this interferes with the employer’s operations. For that reason it is important that any industrial action is official.
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2. For a strike to be lawful, unions must stick to the rules
The main legislation governing industrial action is the Trade Union and Labour Relations (Consolidation) Act 1992. The Act provides the legal framework for trade unions and their relations with employers, including setting out requirements for lawful industrial action.
These requirements include:
- Giving members’ employers at least seven days’ notice of a ballot;
- Ensuring ballot papers are sent to all members;
- Achieving a turnout of at least 50% of those entitled to vote;
- Achieving the required level of support (in education, this means at least 40% of respondents voting in favour of industrial action);
- Making reasonable efforts to announce the voting results as soon as reasonably practicable;
- Using the services of an independent scrutineer and providing employers with a copy of the report if requested;
- Giving employers at least 14 days’ notice of industrial action; and
- Ensuring industrial action takes place within 6 months of the ballot (this can be extended up to nine months by agreement).
The recent NASUWT ballot failed to reach the threshold for lawful industrial action. That’s because, while the majority of members voted in support of strike action over teachers’ pay, turnout fell short of requirements at just 42%.
3. Employees can't be sacked for striking
If an employee participates in industrial action, they will be in breach of their contract of employment. However, provided the industrial action meets the strict requirements set out above, unions and their members will have certain legal protections.
For employees, this means protection from dismissal or any other detriment. Any dismissal will be automatically unfair.
Unions must therefore take great care to organise industrial action in accordance with the law to avoid being sued and to protect those who participate.
4. Unions can organise multi-site strikes
Unions can organise industrial action across multiple employers and sites if they are subject to commonly agreed collective terms, as seen in the case of teachers or NHS staff.
This applies to maintained schools and Trusts and academies who are bound by the School Teachers’ Pay and Conditions Document (STPCD) but not to independent schools whose terms are independently negotiated, unless they have, for some reason, incorporated the STPCD into their own terms.
Independent schools should therefore not be subject to industrial action under the current ballot unless they have their own separate dispute and the unions have followed the legal requirements. If they haven’t done so and staff do strike, this is likely to be unauthorised and unlawful.
5. Schools are expected to stay open, where possible
The DfE expects schools to take all necessary measures to “all reasonable steps to keep the school open for as many pupils as possible” during industrial action, taking into consideration health and safety.
The decision will rest with the headteacher in a maintained school, and the Trust Board in an Academy or Multi Academy Trust, who will normally delegate this to individual headteachers.
Headteachers are expected to consult with relevant parties, including the Trust, Local Governing Bodies, parents, and Diocesan representatives, as necessary.
6. Unions don't need to disclose who's participating
Schools can ask staff if they are participating in industrial action, but they are not obliged to answer. The union will provide a list of affected categories and workplaces, but not names.
Asking staff about their participation must be done carefully, as union membership is protected data under UK GDPR and those participating in lawful industrial action have protections against dismissal.
Of course, schools will still need to know the reason for staff’s absence on strike days. Some may call in sick instead of disclosing their participation – it’s therefore a good idea to let staff know ahead of time whether you will accept self-certification or not.
7. Teachers can't be forced to provide cover for those on strike
If staff are employed under the STPCD, they cannot be compelled to provide cover during industrial action. This is set out in paragraphs 50.7 and 52.7, which provides that teachers should only provide cover in circumstances that aren’t foreseeable.
- Cover supervisors and teachers employed for cover can step in, if they are not participating in the action.
- Support staff, except in nurseries, can provide cover supervision, oversee alternative activities or carry out “specified work” under the direction and supervision of a qualified teacher.
- Agency workers can also be drafted in to provide cover (for now at least, as this is soon to be challenged in the High Court).
- Alternatively, schools can directly employ individuals to cover staff during industrial action or use bank staff.
You could also consider combining classes, with teachers and support staff working together, so long as health and safety is ensured.
Outside of this, altering timetables may help to make better use of the skills available, or you could consider enrichment days or alternative activities, perhaps inviting in an agency or theatre group.
8. If staff are striking, they are not entitled to pay
The amount of pay you deduct will depend on their contract of employment, but it’s usually 1/365th of their salary per day.
For staff who are working to rule, schools can choose not to pay for partial performance, but this must be clearly communicated to all staff. If you choose to pay staff for work done but dock pay for work refused, the amount must be appropriate, and you must make it clear that the deduction is for damages – not in retaliation for the industrial action.
In Royle v Trafford Metropolitan Borough Council, a teacher refused to take different classes during industrial action. The High Court ruled that a 5/36ths deduction from his salary was a reasonable estimate for damages, based on the number of excluded students. The school had not, however, faced additional cover costs or claims from parents; if it had, the amount deducted may have been higher.
9. Absence due to strike days doesn't break service
However, it also doesn’t count towards continuity of service or reckonable service for the Teachers’ Pension Scheme. The Teachers Pensions website provides further guidance on how to record strike days.
Similarly, time spent on industrial action could affect redundancy pay, as strike days don’t count towards an employee’s total length of service.
10. Health and safety legislation isn't suspended during strikes
As such, throughout this period of disruption, schools must continue to ensure that:
- Employees, pupils and visitors, including contractors, are not exposed to risks to their health or safety, so far as is reasonably practicable;
- Suitable and sufficient risk assessments are in place to eliminate or control risks; and
- Fire safety precautions are maintained.
Consider the knock-on effects of industrial action in your school, including the impact on first aid coverage, supervision, fire wardens, maintenance/cleaning, catering, safeguarding, SENDCO provision and a shortage of specially trained staff. To avoid liability should something go wrong, you will need to be satisfied that you have managed all “reasonably foreseeable” risks.
Picket line safety is another key consideration. In general, the number of picket lines shouldn’t exceed six, and non-staff cannot join a picket. If you see this happening, report it to the union representative straightaway.
Disorderly and threatening behaviour should also be considered as part of your risk assessment – this will likely be a criminal matter and should, as a minimum, result in formal HR involvement . Additionally, there is a duty on all persons, regardless of their employment status, to not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare, such as fire alarms.
Finally, whilst staff are under no obligation to ‘set work’ for pupils, they must still leave the work environment and equipment in a safe condition for pupils and other non-striking staff.
Ultimately, despite your best efforts, there may be no alternative other than closure of the school if you are unable to operate in a safe manner with a reduced workforce. While nobody wants this, safety must be a priority, and at no time should staff and pupils be put at risk.
Specialist legal and safety support for schools
Whether you’re an independent school facing increasing demand for union recognition or an academy worried about operational management on strike days, WorkNest’s Employment Law, HR and Health & Safety specialists can help you to understand the legalities surrounding industrial action and manage any subsequent fallout to reduce your risk of claims.
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