Members of the National Education Union have already taken one day of strike action and, unless a deal is struck with government, more are to come.
As many as 200,000 NEU members are estimated to have walked out on February 1 in their dispute over pay – forcing the full closure of 9% of primary schools, with 50% remaining fully open and the remainder partially open.
Many primary school headteachers will be sympathetic to the strike action and indeed the National Association of Head Teachers has said it will ballot for industrial action again if government talks break-down.
For now, schools are bracing themselves for future NEU walk-outs:
- Tuesday, February 28: All eligible members in Northern, North West, Yorkshire & The Humber regions.
- Wednesday, March 1: All eligible members in East Midlands, West Midlands, Eastern regions.
- Thursday, March 2: All eligible members in London, South East, South West regions.
- Wednesday, March 15: All eligible members in England and Wales.
- Thursday, March 16: All eligible members in England and Wales.
Sympathetic or not, headteachers are charged with trying to keep their schools open and this will present a number of tricky legal questions. Here, I try to answer a few FAQs when it comes to handling industrial action in schools.
What constitutes ‘industrial action’?
In general, the following may amount to industrial action:
- A collective withdrawal of labour (strike).
- Refusal to undertake some duties.
- Refusal to carry out reasonable instructions.
- Work to rule, go slow or sits-ins.
- Picketing.
Who decides whether a school should open if industrial action is taken?
In a maintained school, the decision lies with the headteacher. In an academy or multi-academy trust, the decision rests with the trust board, which normally delegates this decision down to individual headteachers (who should consult with the trust, local governing bodies, parents, and diocesan representatives as appropriate).
The National Governance Association’s advice is that governing bodies in maintained schools should take appropriate action for dealing with industrial action: “Governing bodies and headteachers should be encouraged to keep schools open to maintain continuity of educational provision, taking into account health and safety requirements.”
What about health and safety?
Remember that legislation is not suspended during industrial action – you still have responsibilities to keep people safe. Ensure that you:
- Assess the risk/impact from the action.
- Plan as early as you can – ask staff (in a non-intimidating way!) if they plan to strike so you know where the biggest gaps will be.
- Think about adjustments needed, such as classes being condensed and offering alternative activities to the standard timetable so that you can make use of the skillsets available.
- Ensure picket lines are safe and follow the rules – non-staff may not partake. You would not expect to see greater than six pickets at an entrance to the site.
- Ensure you discuss exemptions with the trade union for roles where safety might be otherwise compromised.
Remember that support staff are able to carry out “specified work” provided they are subject to the direction and supervision of a qualified teacher and the headteacher is satisfied that they have the skills required to carry out the work.
And of course, staff still have an obligation to leave the school and any equipment safe for others to use.
What happens if a member of staff not involved in the industrial action refuses to cross a picket line?
Employees will normally be treated as also taking part in the industrial action and treated accordingly.
Members of trade unions that did not achieve the threshold for industrial action, or which did not vote for industrial action, do not have the same protection against unfair dismissal as those who are taking part in lawful and official industrial action.
Workers who are participating in lawfully organised trade union activities, including industrial action have automatic protection from unfair dismissal. This means that there is no two years’ service requirement before the employee can claim unfair dismissal, it is a day one right.
The dismissal is automatically unfair in the sense the employer cannot offer a justification: if the sole or principal reason for the dismissal is the participation in trade union activities, the employee’s claim will succeed.
However, those members of trade unions that did not achieve the threshold for industrial action, or which did not vote for industrial action, do not have this same right – so there is no automatic protection from unfair dismissal.
Employees who are not union members are protected in the same way as those who are taking official industrial action if they decide not to cross the picket line.
If the member of staff wants to work but is concerned about their health and safety in crossing the picket line, the school should ensure their health and safety is protected or allow them to work elsewhere if that is not possible.
If the school believes the staff member has made every effort to attend work, they can decide not to treat their absence as industrial action.
Can the school ask staff who are not taking part in industrial action to cover other classes?
If staff are employed under the School Teachers Pay and Conditions Document (STPCD), they cannot be compelled to provide cover during industrial action.
Cover supervisors or teachers employed to provide cover can be directed to provide cover if they are not taking part in industrial action.
Support staff, other than in nurseries, can provide cover supervision or oversee alternative activities.
Support staff are able to carry out “specified work” provided they are under the direction and supervision of someone with QTS.
If staff are willing to carry out the work to help maintain the essential running of the school, that’s fine. However, staff should not be given work that they are not qualified/competent to perform.
If staff refuse, you will need to consider whether the request is reasonable in terms of their skillset and job description. Staff cannot be compelled to undertake work not within their contract of employment unless it is reasonable to do so, such as where it is necessary to prevent a breach of statutory duty or vital for service provision. The overall goodwill of staff also needs to be taken into account when making such requests.
Schools can choose to bring together groups and classes with teachers and support staff working together, so long as health and safety is ensured.
- Jane Hallas is head of the Education and Charities Team at employment law and HR firm, WorkNest. The contents of this article do not constitute legal advice and are provided for informational purposes only. Visit www.worknest.com