HCR Law Events

31 January 2023

Pay dispute: the threat of industrial action

FAQ for Independent Schools

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.

We produced detailed guidance for independent schools on this issue which can be found here. This highlighted the 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 given that the dispute relates to the national terms and conditions as set by the Department for Education in respect of which independent schools are not bound.

Nevertheless, the threat of industrial action remains a significant risk.

The dispute in the maintained sector will no doubt focus minds on the question of pay in the independent sector and this is highlighted by the NEU’s “independent sector national pay campaign”. It is anticipated that independent schools will see an upsurge in pay claims over the coming months that could form the basis of future, lawful, industrial action.

Furthermore, the NASUWT has announced that it has mandates for industrial action in 184 independent schools across England and Wales – 172 in England and 12 in Wales. Although we are not aware of the NASUWT having given notices of an intention to strike based on these mandates at this time, this is an uncertain and fast-developing situation. It also comes in the context of an already increased threat of industrial action in the independent sector over issues such as the Teachers’ Pension Scheme.

With this in mind, we have set out below answers to the key practical questions schools are likely to have should the threat of industrial action become a reality. Schools may wish to refer to the updated guidance produced by the Department for Education on handling strike action which can be accessed here.

The law regarding industrial action is complex and schools should seek independent legal advice regarding their circumstances.

What is industrial action?

There is no legal definition of industrial action but, in essence, it is action taken in order to put pressure on an employer regarding a specific issue.

There are two basic types of industrial action:

  • A strike
  • Other industrial action short of a strike, for example working to rule (see further below).

What requirements must be met for industrial action to be lawful?

Industrial action is only lawful if it is in contemplation or furtherance of a trade dispute and complex balloting and notice provisions have been met, as we explain below. A trade dispute will include a dispute between workers and their employer which relates to terms and conditions of employment. A dispute over pay, or pension, for example, would fall within this category.

What are the balloting and notification requirements?

A union must provide an employer with notification that it intends to ballot its members over industrial action at least seven days before the ballot is open. This notification will specify the total number of employees to be balloted. A sample ballot paper must also be provided at least three days before the ballot is open.

In order for a ballot to be “successful” for the unions, there are participation requirements, 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.

Only members of the trade union will be entitled to vote in any ballot regarding strike action. 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 a trade union member may not vote in a ballot.

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.

What difference does it make if industrial action is lawful, or unlawful?

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.  Where the strike is unofficial and unlawful, in most cases the employer will be immune from claims of unfair dismissal for those union members taking part in the strike.

The statute contains no provisions regarding a union member who suffers a detriment due to taking part in an official strike. However, regardless of the legalities over dismissal or detriment suffered due to strike, any form of disciplinary action or dismissal is unlikely to represent a productive way forward to resolve a trade dispute.

What is the impact of industrial action on the employment contract?

As strike action involves the employee ceasing to work without their employer’s agreement, it will in most cases amount to a breach of contract. Other industrial action short of a strike will also usually constitute a breach of contract, depending on the circumstances and the terms of employees’ contracts.

Unions who ballot for strike will therefore be inducing a breach of contract but will be able to establish statutory immunity in respect of claims where the requirements set out above are met and the action is lawful.

What should we do if we receive notification that there will be a ballot for industrial action in our school?

This will depend on the nature of the dispute and any prior discussions relating to it. Specific advice should be sought.

A communication to the union is likely to be appropriate. It may also be appropriate to communicate with staff. If the dispute relates to pay, this communication may explain the context of any decisions taken internally in this regard 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.

Any communication with staff may also highlight 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.

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.

A ballot notice should also prompt a school to risk assess the possible impact of strike action and to consider what practical steps may be necessary to mitigate that impact in the event the ballot is supported. This risk assessment should be kept under review as the situation develops.

What happens after a ballot for industrial action has taken place?

As soon as reasonably practicable after the ballot, the union must take such steps as are reasonably necessary to ensure that the relevant employer is informed of the result.

Is a union required to provide prior notice of planned strike action?

Yes. The union must provide notice of a strike or other industrial action, at least fourteen days before the action is due to start. This notice should confirm the total number of affected employees.

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 should we do if we receive notification that a ballot has been successful, and that strike action is to take place?

Clearly, strike action is likely to be detrimental. It may well impact on parental confidence. The unions will be well aware of this impact.

Where a ballot is successful, and notice is given of an intention to strike this should prompt a further review of the school’s risk assessment and the practical steps that can be considered for mitigating the impact of the action. Consideration should be given to the following:

  • The possible health and safety implications of the action on pupils, staff, and visitors
  • The likely impact on the curriculum and what adjustments may be required
  • The possible impact of the action on the security of the school site
  • Steps that may be taken to secure replacement labour during a strike day (see further below)
  • Whether the school is likely to be able to continue to remain open. This may well depend on a whole range of factors such as the size of the school, whether you are boarding, age range and therefore ratios in Early Years.

This risk assessment will inform and underpin a decision as to whether the school remains open to pupils as usual, partially opens or is closed to all pupils.

PR will be critical, for both staff and parents, and externally in the local area. Schools therefore may wish to engage external PR support if they believe this to be necessary.

Will we know in advance who intends to strike?

Not necessarily. Employees are not required to inform their employer that they intend to strike.

Can we ask staff if they intend to strike?

Yes. It is perfectly acceptable to ask staff whether they intend to strike, to understand the implications of the action on the operation of the school and to inform your risk assessment. It is important, however, not to single out those you may believe to be trade union members. A communication to all relevant staff is likely to be appropriate.

As noted above, however, staff are not obliged to confirm their intentions and may change their mind at any point up to and including the day of strike action.

What if a member of staff calls in sick on a day of strike action?

Where a member of staff reports in sick on a strike day this should be treated in line with all other cases of sickness absence, including in relation to pay, unless there is clear evidence demonstrating that the absence is not genuine. Normal sickness absence reporting procedures are likely to apply.

How long could strike action last?

The industrial action must begin within six months of the date the ballot closed, otherwise the ballot result will be treated as “stale”. The union and the employer may agree to extend this period up to a maximum of nine months, which might be appropriate if the parties consider that further time may enable the dispute to be resolved. Essentially this means that a “successful” ballot now may allow discontinuous strike action to take place over the next six or nine months.

What action, if any, can be taken against the trade unions?

As explained above, the key legal question facing a school threatened with industrial action is whether it has been lawfully organised by the trade union(s). If the strike action is lawful, the unions will have statutory immunity from any such action.

Where the unions do not have statutory immunity, there is scope for legal action. This would include applying for an injunction to prevent the union(s) continuing with the strike. Furthermore, if a trade union asks an employee to refuse to work at a time when the employee is contracted to work, it will be liable for inducing, or procuring, a breach of the contract of employment.

Can we withhold pay during days of strike action?

Yes, if staff are on strike, the school does not need to pay them for any period during which they are not working.

Schools will of course need to separate those who are taking part in a strike from those who are absent for other legitimate reasons, for example, sick leave or holiday and ensure that pay is not deducted for those members of staff.

How is a day’s pay calculated?

If staff are paid a salary, the general rule is that schools can deduct a day’s pay for a day’s strike.

The level of pay to be deducted will therefore depend on the calculation of a day’s pay set out in the contract of employment.  If the contract of employment is silent on this, salary should be deducted at the default rate, namely 1/365 of salary.

Will we have to refund parents if it is necessary to close on a day of strike action?

A school will need to communicate to parents about any industrial action, so that they are aware of any proposals and the likely impact on the school.

If a school has to close, or close to day pupils in the case of a boarding school, it is important to check the parent contract. It is unlikely that you will need to refund fees to parents, but this will depend on the circumstances and the wording of the parent contract.

Can non-union members and members of other unions participate in strike action?

Yes. Protection from dismissal extends to non-union members and consequently such staff are able to participate in any strike action, although they would also lose a day’s pay for each day they are on strike. The position is more complicated in respect of members of another union – i.e. not the union that has been successful in the ballot. An employee who is a member of a different union has no protection, and will be deemed to be taking “unofficial” action, unless the strike is supported by their union.

Can staff in independent schools strike in support of staff in the maintained sector?

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 the 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 therefore 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.

What are the rules regarding picket lines?

While there is no legal definition of the term “picketing”, it is usually taken to cover activities undertaken by workers, which may be organised by their union, intended to bring attention to a dispute.

It is lawful for striking members of staff, and union officials who represent them, to picket at or near their place of work for the purpose of obtaining or communicating information, or persuading any person to work or abstain from working. Picketing must, however, be peaceful and any threatening or intimidating behaviour towards those staff members who wish to continue working during any strike is unlawful. The law will not protect anyone who pickets without permission on or inside private property.

For the avoidance of doubt, the law relating to strike action would also not serve to protect a member of staff in the event of any threatening or intimidating behaviour towards parents, pupils or visitors to the school. If such behaviour is reported or concerns are raised, specific advice should be sought.

Each union organising or supporting a picket must appoint a picket supervisor- whose role is to oversee matters and is able to liaise as needed with the school or the local police, who must be informed of the identity of the picket supervisor.

The Department for Business, Energy and Industrial Strategy (BEIS) has issued a Code of Practice on Picketing which can be accessed here which contains practical guidance on picketing in trade disputes.

The Code of Practice recommends that “mass picketing” should be avoided and states that “in general the number of pickets [should] not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate” (paragraph 56). However, this is only intended as a guide and smaller (or larger) numbers may be lawful, depending on the particular circumstances.

Where does Keeping Children Safe in Education sit in relation to industrial action?

As schools are aware, Keeping Children Safe in Education (KCSIE) sets out the arrangements for the safeguarding and supervision of children. In the event of a strike by teaching staff, schools should have regard to their obligations under KCSIE. In particular, the arrangements set out in KCSIE allow schools to use existing members of the school volunteer workforce, with the relevant Disclosure and Barring Service (DBS) checks, to provide supervision; and/or identify other new volunteers who could support existing staff but who would need to be supervised by another member of staff or volunteer with a DBS check.

Clearly, as noted above, ensuring the appropriate supervision, safety and security of pupils in the event of a strike, in accordance with KCSIE, will be a key consideration for the purposes of a school’s risk assessment and decision making.

What is industrial action short of strike?

Whereas strike action is a complete refusal to work, industrial action short of strike means staff working in ways which disrupt “business as usual.” These might include an overtime ban, where staff refuse to engage in overtime work (being any work that falls outside of contracted hours); go-slow, where work or progress is deliberately delayed or slowed down, or work-to-rule (see further below).

What is ‘working to rule’?

Working to rule is a type of industrial action short of strike action in which employees perform their duties strictly to the letter of their contract – that is, refusing to take on any additional duties, the aim being to slow down production or otherwise disrupt the day to day running of the School.

What arrangements can we make for replacement labour during strike action?

Schools can arrange for existing staff who choose not to strike to temporarily cover those that decide to go on strike although schools will need to be mindful of the employee relations aspects.

Schools could choose to employ temporary staff and volunteers (as above) but would need to ensure that all of the necessary safer recruitment checks have been carried out.

Since July 2022, it is no longer a criminal offence for an agency to supply agency workers to cover the duties of striking employees. Nevertheless, schools should ensure that any agency workers replacing striking staff have the necessary skills and qualifications to carry out the role and, importantly, have been subject to the usual regulatory checks.

As noted above, 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.

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