Strike action in schools: a legal briefing for academy trust leaders
NEU members will take strike action in February and March.
With the announcement last week that the NEU ballot for strike action passed the required thresholds, academy trust leaders will be taking key decisions in preparation for the proposed strike days. In this briefing, we provide an overview of some of the key legal issues for academy trust leaders to be aware of when planning for the impact of strike action.
The full list of proposed strike days has been published by the NEU and is available at: https://neu.org.uk/press-releases/neu-take-strike-action-over-pay. There are seven days of strike action planned, but some of these are restricted by region and so the number of strike days impacting on an individual school will be four.
Updated DfE guidance on handling strike action in schools
In a timely move, the Department for Education (DfE) published its updated non-statutory guidance on Handling Strike Action in Schools (DfE Strike Guidance) on the day the NEU strikes were formally announced. This is a useful document which sets out the answer to some key questions trust leaders will now be asking.
Minimum service levels
The DfE Strike Guidance sets out an expectation on headteachers to take all reasonable steps to keep the school open for as many pupils as possible. However, this is guidance only and there are, at the moment at least, no legal requirements for schools to provide a minimum level of service during strike action.
For information on the Strikes (Minimum Service Levels) Bill which progressing through the parliamentary stages, please see our recent article: Proposed minimum service levels during strike action may impact on education sector.
Asking staff about their intentions to strike
Schools and academy trusts can ask staff to let them know whether they intend to strike. However, there is no requirement for staff to inform their employers of their intentions, either in advance or on the day itself and staff should not be pressurised into providing this information. The NEU has advised its members not to provide this information to schools.
Staff who are non-union members may also decide to join the strike action. Similarly, they cannot be required to inform their employer of their intention to strike.
Staff whose terms and conditions incorporate the School Teachers Pay and Conditions Document (STPCD) cannot be required to cover colleagues who are striking as this is a foreseeable event. It may be possible, however, to redeploy members of staff to other duties and/or trust schools, as long as this is permitted under their contract.
Staff who are employed wholly or mainly to cover staff absences can be asked to cover the lessons of striking colleagues, but may in some cases be taking strike action themselves.
There is no requirement to provide the curriculum as normal on strike days, and so it is possible to organise alternative activities which do not require the same level of staff supervision. Academy trust leaders should of course assure themselves that any such activities can be safely run, in terms of both health and safety and safeguarding obligations. They should also ensure compliance, where relevant, with the staffing ratio requirements in the Statutory Framework for the Early Years Foundation Stage.
Engaging agency staff and directly employing staff to cover strikes
Following the repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 in July 2022, it is now possible for employers to engage agency workers to cover striking staff. The significant demand for agency staff on strike days should of course be anticipated, and trusts should take early action to check availability before relying on agency workers.
Trusts can enter into direct employment contracts with staff to cover those on strike. Volunteers can also be deployed to work in schools on strike days.
It is important to note that the safer recruitment requirements in Keeping Children Safe in Education must continue to be complied with, and that the relevant DBS checks are in place for all individuals who will be carrying out regulated activity.
Making a decision to restrict attendance or to close a school
For academy trusts, the decision as to whether to close or to restrict attendance will be one for the trust, taking into account the DfE Strike Guidance. The trust may delegate this decision to the principal of each school under its scheme of delegation which, as required by the Academy Trust Handbook, must be published on the trust’s website.
Partial closure: prioritising certain pupils
In updated guidance which chimes with that issued for partial closure during the Covid pandemic, where schools and trusts decide to restrict attendance, they are asked to prioritise the needs of vulnerable children and young people, the children of critical workers, and pupils due to take public examinations and other formal assessments.
The DfE Strike Guidance also asks headteachers to consider arranging for remote education in line with Providing remote education: guidance for schools. In making such arrangements, academy trust leaders should be mindful of the STPCD cover restrictions when asking staff to provide remote education where this is in fact a request to cover striking colleagues.
Impacts on those taking strike action
Pay and pensions
Striking staff will lose a day’s pay for each day of strike action. The NEU has confirmed that it will not pay strike pay to members. The calculation of a day’s pay for these purposes will be governed by the contract. Teachers whose contracts incorporate the Conditions of Service for School Teachers in England and Wales (the Burgundy Book) will have 1/365th of their pay deducted for each strike day. Strike days are not counted as pensionable service under the Teachers’ Pension Scheme.
Legal protections for staff relating to lawful strike action
Employees who have participated in lawful strike action are protected from dismissal for taking such action in certain circumstances. These provisions are far from straight-forward and academy trusts should seek legal advice when contemplating dismissal or detrimental treatment which might be seen as constructive dismissal following strike action.
Non-union members who decide to strike alongside their NEU colleagues take the benefit of the same legal protections. On the other hand, NASUWT has made clear to its members that any such action would be unofficial as it does not have a legal mandate to instruct members to strike, and that NASUWT members would not be protected from dismissal for joining the strike (https://www.nasuwt.org.uk/news/industrial-action/when-other-unions-take-industrial-action.html).
Reputational issues and the expression of political views
In the current climate, there are of course strong views on both sides of the debate on public sector pay. Academy trust leaders and heads may well support the union campaigns to see fully funded pay increases which are more in line with inflation. Academy trust leaders will also have at the forefront of their minds concerns about further lack of continuity of provision on pupils who have been impacted by unprecedented disruption to their education and examinations in recent years, as well as the financial impact on their parents and carers of having to take time off work when schools are forced to close.
It will be important to ensure that any engagement on behalf of the academy trust with the media and with stakeholders on the issue of strike action complies with internal policies and procedures and remains focused on the best interests of the trust.
The principles of good governance set out in the Governance Handbook require all trust boards and headteachers not to promote one-sided political views, and this should be borne in mind when expressing views on behalf of the trust.
The following Statutory Codes of Practice bring together the complex legal rules on what constitutes a lawful strike and what unions and staff can and cannot do when picketing:
It is possible that there will be further strike action in coming months as the NASUWT and NAHT have both expressed an intention to re-ballot staff after missing the threshold for turnout in their recent ballots. This wave of strike action comes as another significant burden for school and trust leaders, following as it does the crisis management of the Covid pandemic and the impact of energy and other costs on school budgets.
Academy trusts should as ever be mindful of the additional pressures strike action places on the leadership team and do what they can to provide wellbeing and practical support for those tasked with steering the trust through this extended period of challenge.
Seeking timely legal advice can help to support trust and school leaders to mitigate risk and to make difficult decisions with confidence.
How Wrigleys can help
The education and employment teams at Wrigleys are expert in advising education sector clients working with recognised trade unions.
We have an in-depth understanding of how our education sector clients’ governance and regulatory obligations impact on industrial relations, employment litigation risks and wider reputational risks.
If you would like to discuss any aspect of this article, please contact Alacoque Marvin or other member of Wrigleys’ education or employment teams on 0113 244 6100.
The information in this article is necessarily of a general nature. The law stated is correct as at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.