Dispute over pay: the threat of industrial action

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 two main education unions, the NEU and the NASUWT (the “Unions”), are in dispute with the government over the pay awarded nationally for teachers and support staff in the maintained sector.

Both Unions are balloting members over industrial action relating to this dispute and we are aware that several independent schools have recently received statutory notices to this effect.

This note is intended to address the initial questions schools are likely to have, the implications of a possible strike and what practical steps schools can take.

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?

There is an argument that any industrial action taken in independent schools in these circumstances, in the absence of a pre-existing dispute over pay, would be unlawful for the following reasons:

• 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 employment. 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.

This has been referenced expressly within the statutory notices we have seen to date and will be 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 dispute. 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.
• Within the statutory notices we have seen to date it does not appear that the Unions have provided sufficient notice of the opening of the ballot for industrial action. A union must provide the employer with notice of the ballot at least seven days before the ballot is open and with a copy of the sample ballot paper at least three days in advance.

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, 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.

Should we be writing to the Unions in response to the statutory notices?

This will be a decision for each school based on its individual circumstances and specific legal advice should be sought.

Assuming, however, that an independent school is not currently in dispute with the Unions in relation to pay, our view is that a letter in response to the statutory notice would be appropriate. This should set out, in a non-confrontational manner, the reasons why you consider the action to be unlawful, as detailed above.

Independent schools may wish to note in any communication with the Unions that they hope that ballot papers will not be sent to staff, and that no member of staff will be unlawfully induced to breach their contract in these circumstances, reserving the right to pursue appropriate legal action.

The union may, nevertheless, opt to continue with the ballot despite the risk of any industrial action being unlawful. Alternatively, the union may seek to instigate a separate trade dispute with the school, for example relating to its pay scales, as opposed to the national pay award. At the very least, however, a communication challenging the validity of the proposed industrial action may cause some delay, with the union potentially having to provide a fresh notification to the school and to re-ballot staff to comply with the statutory requirements.

If a ballot takes place, what level of support do the Unions require?

If, despite the points made above, a ballot takes place, there are participation requirements that must be met, as well as the need to get a certain level of support for the industrial action.

The following requirements must be met:

• at least 50% of those entitled to vote must take part in the ballot
• a simple majority of those voting must have answered ‘Yes’ to the relevant question contained in the voting paper (i.e. more than 50% of those who voted)
• where more than one question was asked, each question requires a majority of those answering that question, rather than of the total who answered either question

If a school is on a split site (e.g. a separate prep and senior school), a cross-workplace ballot can take place in certain circumstances.  The main requirement is that there is at least one union member affected by the dispute in each workplace.  This is likely to be met in these circumstances, if it can be said that there is a trade dispute at all, given what is said above.

Only members of the relevant trade union will be entitled to vote. In many schools there will be more than one active union.  Each union will need to ballot its own members, and those members will be able to vote in the ballot of their union only.  Employees who are not trade union members may not vote in a ballot.

When could industrial action take place?

If the ballot participation and support thresholds are met, the industrial action must begin within six months of the date the ballot closed, otherwise the ballot result will be treated as “stale”. This period may be extended by up to a maximum of nine months by agreement. Essentially this means that a “successful” ballot now may allow discontinuous strike action to take place over the next six (or nine) months, subject to the points made above regarding the validity of the action.

The notices we have seen from the NASUWT refer to strike action, or action short of strike action, taking place during term time from January 2023 to July 2023 (and during August to October 2023 if agreement is reached to extend the life of the ballot to nine months). We are not yet aware of any independent school having received a statutory notice from the NEU, although the NEU has announced that strike action, if supported, may take place from the week commencing 30 January 2023.

Notice of industrial action must be served on the employer at least 14 days before the start of the industrial action. This can be reduced to seven days if both parties agree.

Industrial action could be continuous (in one block) or discontinuous (involving several blocks). Where continuous, the union must give notice of the intended start date, whereas for discontinuous industrial action, the notice must detail all intended strike dates.

What is the impact of strike action?  

Despite the points made above regarding the lawfulness or otherwise of the action, the Unions may, nevertheless, opt to ballot staff in independent schools and, if the necessary participation and support thresholds are met, induce members to strike.

Clearly, strike action is likely to be detrimental. It may well impact on parental confidence, and prospective pupil numbers may suffer as a result, albeit this is a national issue rather than one related 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 hand.

If an independent school currently pays below the maintained sector a ballot may also bring this to the forefront of staff minds.

On receiving notification of a ballot, we consider that a communication to the Unions would be appropriate, making the argument that the industrial action is unlawful for the reasons outlined above. Independent schools may wish to consider taking legal action against the Unions for unlawfully inducing staff to breach their contracts of employment. This may include seeking an injunction to prevent the Unions continuing with a strike. Legal advice should be sought in these circumstances.

It would also be appropriate to communicate with staff at this stage, 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 it should not be seen as threatening or appear to disparage the Unions or the staff concerned. It may be helpful to outline the reasons why the school considers the action to be unlawful and reference any support offered to staff in the context of the cost-of-living crisis, if relevant.  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.

Schools may also wish to consider writing to parents to explain the background to the ballot 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 the ballot is supported, it will be critical to communicate with parents regarding any planned strike action from January next year and how the potential impact on pupils will be mitigated.

The threat of strike action presents a significant risk for schools in the coming year, especially when considered alongside the numerous other challenges the sector faces. 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 Oliver Daniels, Rachel Parkin, or your usual contact within the firm.