Dispute over pay: the threat of industrial action continued…

Please note that this guidance is of relevance, primarily, to independent schools. If you are an academy or maintained school, please do get in contact for specific advice.

Schools will be aware that the main education unions are in dispute with the Government over the pay awarded nationally for teachers and support staff in the maintained sector. The threat of strike action presents a significant risk for schools, especially when considered alongside the numerous other challenges the sector faces.

Both the NEU and NASUWT have been balloting members over industrial action relating to this dispute and we are aware that a number of independent schools received statutory notices towards the end of 2022 to this effect.

In addition, the NAHT have been balloting members for industrial action over pay for the first time in the union’s 125-year history. The NAHT did not achieve the turnout required for strike action.

For the NASUWT, the announcement last week that their ballot of members had been unsuccessful regarding state school industrial action (although the union has announced plans to ballot members again), was contrasted with claims of success in the independent sector. The union’s announcement on 12 January 2023 stated that mandates had been secured for industrial action in 184 independent schools across England and Wales (172 in England and 12 in Wales). The situation therefore remains uncertain for independent schools and whether the mandates will result in industrial action is, as yet, unknown.

On 16 January 2023 the NEU announced its intention to strike, declaring seven days of strike action in February and March, with the first date for industrial action set for Wednesday 1 February 2023 (although we understand that any individual school will only be affected by four of the seven days). It is understood that the NEU is looking for a pay rise of 12% rather than the 5% offered to date by the Government for most teachers.

The NEU has however confirmed on its website that, based on the ballot results, it is calling the following eligible members to take strike action: teachers in Sixth Form colleges; teachers in state-funded schools and academies in England; teachers in state-funded schools in Wales and support staff in state-funded schools in Wales. There is therefore no suggestion that NEU members within independent schools are being called to strike at this stage.

That said, alongside this, the NEU has also announced an “independent sector national pay campaign,” described as an encouragement of NEU members to push for a more co-ordinated approach to sector workplace pay bargaining and to submit collective pay claims to schools. It is anticipated that independent schools will see an upsurge in pay claims over the coming months.

What this may mean for schools, and how schools may wish to respond, is explored below.

The dispute relates to pay in the maintained sector, as determined by the Government. Is industrial action lawful in these circumstances in the context of an independent school?

As set out in our previous note on this issue (Dispute over pay: the threat of industrial action) it is arguable that any industrial action taken in independent schools in these circumstances, in the absence of a pre-existing dispute over pay, would be unlawful. This is primarily because:

• Independent schools have authority over their own salary scales and do not have to follow the pay arrangements set nationally, although some may refer to the national pay arrangements in their contracts of Some independent schools use state sector pay for benchmarking purposes or choose to follow the national terms.
• For lawful industrial action to take place, a union must ensure that various statutory procedural requirements are met. This includes the requirement for the action to be taken in contemplation or furtherance of a trade dispute. A trade dispute will include a dispute between workers and their employer which relates to terms and conditions of employment.

In this case, the dispute is between workers and the Government, as it relates to the national terms and conditions as set by the Department for Education.

As independent schools are not bound by the national terms, in the absence of a pre-existing dispute in relation to pay or any contractual obligation to follow the national terms there is, arguably, no valid trade dispute on which to base lawful industrial action.

• Where there is a dispute between workers and a Government Minister, as is often the case with industrial disputes in the public sector, this may still be treated as a trade dispute with the workers’ employer, if the dispute relates to matters which cannot be settled without the Minister exercising a power conferred on them by statute (section 244(2) TULRCA).

This was referenced expressly within the statutory notices we have seen to date and is of relevance to schools in the maintained sector. The position is, however, more complicated in respect of independent schools. A change in the Government’s position will not, arguably, resolve a dispute (if one exists) between workers and an independent school, as the independent school will not be bound by the Minister’s decision.

• Industrial action is unlawful where the employer of the worker who takes industrial action is not the employer party to the This is known as “secondary” action and is often referred to as “sympathy” or “solidarity” action as it involves staff who are not participants in a trade dispute striking in support of those who are affected. If it can be established that there is no trade dispute as between a worker and an independent school, any industrial action taken by that worker is likely to fall within the category of secondary action and will be unlawful. It would be unlawful for a union to induce a member of staff in an independent school to take part in industrial action in support of teachers within the maintained sector, for example.

We are aware that the NASUWT has responded to some schools who have disputed the lawfulness of the industrial action rejecting the position. That said, whilst the letter claims that they consider there to be a valid trade dispute (on the basis that they consider their to be a dispute between members and their employer as NASUWT members are seeking a 12% pay increase and the particular schools had not agreed to increase pay by 12%, an argument which remains questionable), it goes on to acknowledge that section 244(2) may not apply to independent schools.

If the industrial action is potentially unlawful, what does this mean in practice?

In most cases, where the strike has been lawfully organised by the union (i.e., the statutory requirements have been met), dismissal of union members due to strike will be automatically unfair. The unions involved will also be protected by statutory immunity against legal action for having induced staff to breach their contracts of employment.

Where a strike is unlawful, however, in most cases the employer will be immune from claims of unfair dismissal for those union members taking part in the strike. There is also scope for legal action against the trade union. This could involve applying for an injunction to prevent the union continuing with the strike.

What should independent schools be doing now?

We understand that staff in some independent schools were balloted by the NASUWT and NEU, and, therefore, it remains possible that strike action could take place in independent schools in the coming months. As noted above, it does not appear as though the NEU intend to call eligible members in independent schools to strike at this stage, but schools should be mindful of the NEU’s intention to instigate an “independent sector national pay campaign.”

In terms of a school’s approach, this will be a decision for each school based on its individual circumstances and specific legal advice should be sought.

We would recommend that schools review their current pay arrangements with staff. In terms of assessing the risk of strike action, schools should consider whether salaries (and any recent pay reviews/increases) are below, in line with, or indeed higher than, the state sector. Inevitably, if an independent school currently pays below (or in line with) the maintained sector the ballot is likely to have brought this issue to the forefront of staff minds and therefore there is likely to  be a higher risk of strike action in these circumstances. Furthermore, as an alternative to, or alongside, strike action, schools may receive individual (or collective) grievances from staff regarding this issue, which will need to be considered and addressed appropriately in line with school policies and procedures.

It is also important to consider whether or not there is a pre-existing pay dispute with the unions and staff.

If there is a pre-existing dispute, it will be important to keep the lines of communication open with staff and/or the union(s) regarding the issue and at the same time appealing to the hearts and minds of staff in terms of the consequences of strike action (see further below).

In the absence of a pre-existing dispute, we would recommend that schools talk to their staff about the issue, but at the same time ensure (in a non-confrontational manner) that they are clear that there is no existing dispute in their particular school and that they therefore consider that any strike action would be unlawful.

Schools may wish to adjust their approach depending on whether they are communicating with staff or the unions and perhaps consider taking a more robust approach with the unions regarding the legality of any strike action.

Ultimately, the unions may seek to instigate a separate trade dispute with the school, for example relating to its own pay scales, as opposed to the national pay award, and therefore it is important to be mindful of this in your communication with staff and the unions, especially in the context of the legality of the strike action. This is particularly pertinent given the NEU’s “independent sector national pay campaign“, encouraging members in the independent sector to make an annual pay claim. Therefore, whilst the current strike action may be deemed unlawful, this could result in future (lawful) strike action taking place.

What is the impact of strike action?

Irrespective of the points made above regarding the lawfulness or otherwise of the impending strike action, members may decide to strike in any event and it is unlikely that schools will wish to take steps to dismiss employees who participate in industrial action, even though it is likely to be unlawful.

Clearly, strike action is likely to be detrimental. It may well impact on parental confidence, and prospective pupil numbers are likely to suffer as a result, albeit this is a national issue rather than one relating to a specific school. The Unions will be well aware of this impact. The threat of strike action is drastic but is ultimately the Unions’ trump card which they will use in what they see as a crisis situation and as leverage in an attempt to force the Government’s (and an independent school’s) hand.

Is there anything else schools can do, or should be doing, in the light of the threat of strike action?

We would recommend that schools consider communicating with staff, explaining the context of any decisions taken internally regarding pay, and highlighting the likely impact of strike action.

The tone of this communication is key, appealing to the hearts and minds of staff and explaining the likely consequences that strike action will have and the possible damage it may cause to the school. The communication should not be seen as threatening or appear to disparage the Unions or the staff concerned. As mentioned above, it may be helpful to outline the reasons why the school considers the action to be unlawful (if relevant) and reference any support offered to staff in the context of the cost-of-living crisis, for example. It may also be helpful to refer to the school’s own pay policy, particularly if this is set at a higher rate than the national pay arrangements, or indeed any additional benefits that the school offers over and above those common in the state sector.

Schools may also wish to consider writing to parents to explain the background to the strike action and the steps being taken to encourage staff not to support it. This will be a judgement call for each individual school, depending on the circumstances. Clearly, if schools consider that strike action is likely, it will be critical to communicate with parents regarding this and how the potential impact on pupils will be mitigated.

The DfE has issued some helpful guidance on dealing with strike action which applies to maintained and state schools, which can be found here.

Is the union required to provide schools with individual notices of strike action?

Yes. We are aware that the NASUWT has in certain cases provided notice of the intended strike action within the notification of the results of the ballot. With regards to the NEU, whilst the union has confirmed publicly the dates on which they intend to strike, this notice is only valid in relation to maintained schools.

An individual notice must be served on each independent school 14 days before the commencement of any industrial action.

Can we ask staff whether they intend to strike?

While employees are not required to tell the school whether they intend to take strike action schools are able to ask staff in advance if they intend to strike to enable them to plan how to manage the strike and deal with absences. Understandably, there are health, safety and safeguarding issues involved in your decision making as to whether or not to remain open if there is an inadequate ratio of staff and, as such, it is reasonable to make enquiries as to the intentions of staff.

What next?

Irrespective of whether the strike action is lawful or unlawful, the threat of strike action in the independent sector continues to be a possibility and therefore it is important to consider the practicalities of this and how your school will respond in the event that teachers decide to support the impending strike action at your school.

Furthermore, more generally, we are continuing to see increasing numbers of requests for formal recognition by the NEU and NASUWT in independent schools, particularly in the context of disputes over pay (and pension) and schools should be alert to the possibility of receiving such a request. In those circumstances, it is important to consider the views of staff and the potential risk of the union subsequently pursuing statutory recognition if they feel they have a sufficient level of support. It would therefore be sensible to take proactive steps to engage with staff and review existing internal information and consultation arrangements with employees and consider whether any new arrangements should and could be put in place, prior to receiving any such request.

The law relating to industrial action is complex and legal advice should be sought to understand the risks and practical steps schools may consider taking.

Our experienced Education team are on hand to support you with these issues. For specific queries, please contact Rachel Parkin or Oliver Daniels or your usual contact within the firm.