On Tuesday, the Department for Education published a nine-week consultation setting out its plans (DfE, 2023).
The move left education unions furious as talks had been on-going to reach an agreement about what MSLs might look like in practice.
They have now been brought to an abrupt end. The DfE said that they were not making “enough progress” whereas the unions have accused the government of negotiating in bad faith.
The consultation, which will close on January 30, sets out two options:
- The first would prioritise school attendance during strike action for vulnerable students, exam groups, and the children of critical workers.
- The second would prioritise attendance for all pupils in primary school and priority cohorts in secondary and further education.
The Strikes (Minimum Service Levels) Bill received Royal Assent in July and means the government can set an MSL within specified services, including education, healthcare, fire and rescue, and transport. The prime minister has also said that MSL legislation will be enacted for rail, ambulance and border force workers.
Under the proposals, an MSL would cover state-funded schools and colleges and would mean that employers can decide to issue a work notice a minimum of seven days ahead of any planned strike action.
The consultation states: “The work notice must specify the persons required to work, and the work they must carry out to deliver the MSL for that strike period.”
The proposal states that for extended periods of strike action, of five consecutive days or more, rotas should be used to deliver the MSL.
The National Education Union (NEU) took 10 national and regional days of strike action earlier this year in the dispute over teachers’ pay, which the DfE claims led to 25 million lost school days cumulatively.
The government had already introduced new higher thresholds for strike ballots meaning unions have to achieve higher turnouts and higher numbers voting yes.
Despite this, further strike action by the NEU, NASUWT, Association of School and College Leaders, and National Association of Head Teachers had been on the cards this autumn forcing the government into reaching a settlement.
Daniel Kebede, the NEU’s general secretary, said: “The proposed MSLs are an affront to those who democratically and legally vote for strike action, forcing a large proportion to go into work on strike days. This is a fundamental attack on the democratic freedoms and rights of school staff.
“This is a policy not becoming of a modern, liberal democracy. We already have some of the most restrictive trade union legislation in Europe. In 2015 Conservative MP David Davis said parts of the Trade Union Bill were more fitting of Franco’s Spain.”
What are the MSL options on the table?
The consultation sets out two options for which students would be prioritised under future strike action. It means that employers would be able to issue work notices compelling specific members of staff to come to work in order to ensure the attendance of these students.
Option 1: Covers vulnerable children and young people, pupils due to take public exams and formal assessments, and the children of critical workers.
The consultation sets out standard definitions of vulnerable, including children on a Child In Need Plan or Child Protection Plan, those who are looked after, and those with an Education, Health and Care Plan or on SEN support.
In terms of exam groups, this would include those taking GCSEs, AS and A levels, vocational/technical qualifications, year 11 students participating in the National Reference Test, year 6 pupils taking SATs, and pupils participating in statutory KS2 trials.
The list of critical workers would include health workers, fire and rescue, education, transport, border security, police officers, prison officers and armed forces personnel. The MSL for critical workers would only apply up to and including year 7 as older children are considered able to look after themselves at home.
Option 2: Covers all primary school pupils as well as the priority cohorts outlined in option 1 for secondary schools and colleges.
The consultation states: “Given the critical role that education plays for children’s development, the government recognises there is a strong case to support a larger group of children, particularly younger pupils aged between 4 and 11, through an MSL. This approach would focus on younger children who are more likely to be impacted by missing school.”
War of words
Education secretary Gillian Keegan: “Keeping children in school is my number one priority. Last year’s school strikes were some of the most disruptive on record for children and parents with 25 million cumulative days lost, alongside the strike action that badly affected students in colleges and universities.
“We cannot afford a repeat of that disruption – particularly as young people continue to catch up from the pandemic.
“While I know many schools and colleges worked really hard to keep children and young people in face-to-face education during strikes, we must make sure that approach is applied in every school, in every area of country.”
Daniel Kebede, general secretary of the NEU: “The attempt to impose further restrictions on our democratic freedoms is shameful. This government wants to be tough on strikes, but not on the causes of strikes.
"The attempt at dialogue was never meaningful. It was disingenuous and cynical. The end of talks was briefed out to the press by Number 10 before the talks ended. Sunak always intended to implement this draconian legislation without consent or mandate.
“The government cannot stand the fact that the NEU passed the highly restrictive thresholds for strike action not once but twice during the recent pay dispute. They now seek to make the legislation even more severe.
“MSL legislation is being rushed through. The time period of just nine weeks – including the Christmas break – for consultation on the draft regulations is completely inadequate given the number of workplaces and employers covered by these proposals. The legal measures which Keegan wants to impose are unworkable and show a startling ignorance of school settings.”
Paul Whiteman, general secretary, NAHT: “It could not be clearer that the government entered into talks with the profession in incredibly bad faith. Having set initial proposals that no union could agree to, they have collapsed negotiations by briefing the media first and without ever coming back to the table.
“Teachers and school leaders are dedicated professionals who care deeply about the pupils in their care. It has been shown in recent disputes that school staff remain professional and make careful decisions around the timing of industrial action, so that the impact is focused primarily on the government and minimised for pupils. In reality, the profession already observes its own voluntary minimum service levels – as we have seen ambulance drivers, nurses and doctors do too.
"This is a purely ideological fight from the government, aimed at removing workers’ fundamental rights.”
Dr Patrick Roach, general secretary, NASUWT: “Unions are united in condemning the proposed introduction of politically motivated MSLs in education. The government continues to ignore the fact that it is impossible to secure minimum service entitlements for pupils in an education system so neglected and underfunded, instead opting to aggressively quash criticism with this inflammatory policy.
“Ministers have put forward no compelling justification for MSLs in schools and colleges. Rather than continue discussions on scope for reaching a voluntary agreement with unions, the government has pulled the rug.
“This announcement is a shameless and politically-motivated attack from an out-of-touch government on a beleaguered and demoralised profession who day after day, continue to deliver for our children and young people, despite mounting costs to their own mental and physical health.”
Geoff Barton, general secretary, ASCL: “Minimum service levels are a profoundly illiberal policy by a government that has lost the argument. Nobody wants to go on strike. It is action that is taken as a last resort when all else has failed. But passing a law which effectively removes the right to strike from groups of employees is obviously done in order to weaken unions and the voice of employees over their pay and conditions.
“We are concerned that this legislation will be used by the government to impose a miserly pay award next year which will further erode the real value of teacher pay and worsen a recruitment and retention crisis which is causing huge damage.
- DfE: Open consultation: Minimum service levels (MSLs) in education (closes, January 30, 2024), 2023: www.gov.uk/government/consultations/minimum-service-levels-msls-in-education