Industrial Action

Frequently Asked Questions for Schools

Last updated 27 June 2016

The following are examples of the type of frequently asked questions that have arisen in relation to Industrial Action.

How does the recently introduced Trade Unions Act 2016 affect the legal requirements of strike action?

On 4th May 2016 the Trade Union bill became law and is now the Trade Union Act 2016. However, the various elements of the Act will be introduced in a phased approach starting in 2016 and so the Act is not yet fully in force.

The key element of the TU act 2016 is that Industrial Action will only be lawful when there has been a ballot turnout of at least 50%. In ‘important’ sectors such as Health/Education/Transport there is an additional threshold of 40% of support from all eligible members which must be met for industrial action to be legal.

Another important element of the Act is that the notice of industrial action will be 14 days, unless the employer agrees to 7 days.

The government has agreed to an independent review of electronic balloting.

A repeal of the ban for employers to hire agency workers to cover for employees taking part in industrial action, proposed last year, has not been included in the TU Act. A ban on collecting subs direct from employee’s wages has also not been included. These 2 points were particularly controversial and contested.

Canstaff members be required to teach or cover classes on the day of the action if they are not taking action themselves?

Staff can be requested to cover the duties of staff who are taking action.

The national employers organisation has recently issued the following advice:-

“Staff who refuse to undertake duties performed by striking colleagues might be viewed as having refused a reasonable request. However, we are aware that the other teacher and support unions are advising their members not to undertake cover for striking colleagues. Consequently, unless staff volunteer to undertake additional duties, pressing the point is likely to lead to further problems.”

What if staff refuse to cross picket lines?

Where picketing takes place, employees not directly involved in the industrial action may refuse to cross picket lines. Such employees can normally be regarded as being on strike and treated accordingly. Occasionally however, employees may be willing to cross picket lines but are reluctant to do so for fear of their safety. In such circumstances, the governing body should try and ensure that the member of staff is given every protection in crossing the picket line, or where practicable, is given the opportunity to work at another establishment. If the governing body considers the member of staff has made every effort to cross the picket line but was unable to do so, then the governing body may decide not to treat their absence as industrial action.

As Headteacher am I entitled to know the names of those staff that are likely to undertake industrial action?

Not as an entitlement, but the unions should provide the employer with sufficient information for plans to be put in place and other employees to be warned. In a similar way it would be helpful if the headteacher could inform the Chair of Governors as soon as possible if they intend to take strike action.

When the unions writeto the employee to give notification that they intend to authorise or endorse industrial action, the following information should be provided:-

Whether the unions intend the action to be continuous or discontinuous; the date on which the action is intended to start (if continuous) or all the dates (if discontinuous), and the list of the categories of employees to which the affected employees belong, a list of the workplaces at which they work and figures (together with an explanation of how they were arrived at) showing the total number them in each of the categories listed and the number of them that work at each of the workplaces listed.

What happens to PPA that falls on the day of the action?

Any teacher, including Heads / Deputies and Assistant Heads who may be timetabled for PPA time on the day of the strike are entitled to receive the time and arrangements need to be made for the time to be taken. However, if any teacher who is timetabled to undertake the PPA cover indicates that they will be on strike, then this is an issue that will need to be included in the risk assessment. It may be that the particular class will be asked to remain at home or be sent home later in the day, depending on the circumstances.

How much notice are Unions currently required to give before they embark on strike action?

In order to be protected against proceedings by an employer a union’s call for industrial action will need to be covered by adequate notice of official industrial action. To provide such notice, the union will have to take steps to ensure that the employer* of workers which the union believes have been, or will be called upon to take part in official industrial action receives a written notice from the union which: -

  • Reaches the employer after the union has taken steps to notify the employer of the result of the ballot relating to the industrial action, but no less than seven days before the day specified in the notice.
  • Describes, so that their employer can readily ascertain them, the employees the union intends should take part in the action.
  • States that it is a notice given for the purposes of Section 234 A of the Trade Union and Labour Relations (Consolidation) Act 1992.
  • Is given by any officer, official or committee of the union for whose act of inducing action the union is responsible in law.
  • Whether the action is to be continuous or not.
  • Also, the union’s first call for the industrial action to which the ballot relates must be made before the end of the period of four weeks beginning with the date of the ballot.

*In the circumstances that apply at present the employer is either the Local Education Authority in the case of Community and Controlled schools or the Governing Body in the case of Foundation and AidedSchools.

Can I use supply staff to cover the classes of those teachers on strike?

No. Legislation specifically forbids agencies from supplying workers to replace employees taking industrial action. Teaching Assistants may cover classes if this would have been planned for the day but cannot be asked to cover additional duties.

What happens if staff are due to attend a training event?

Professional Associations and Trade Unions advise that members who are taking strike action should not attend any training as this would be classed as “working”.

What happens if a parents evening is scheduled to take place on the day of the Industrial Action?

It depends on the number of teachers likely to be on strike on that date. It may be possible to run a version of the evening although with fewer staff. Alternatively if so few teachers will be present the meeting should be postponed. It may be possible to re-arrange the evening, but this will depend on a suitable alternative being available. NUT advises its members that school representative should seek to change the date of the evening. NUT members may need to accept that such rearrangement may lead to there being more than one evening meeting in that week.

If a member of staff reports in sick on days of strike action - are they considered on strike or off sick?

The headteacher will need to consider whether this is sick leave or strike action. This will need to be considered on a case by case basis and with discussion with the individual.

What happens to staff who are not on strike if the school is closed?

If the school has to close, those staff who are not on strike will be required to work. The headteacher will have to determine what work s/he would like staff to undertake and whether this should be in school or elsewhere.

My caretaker is taking industrial action. What can I do about opening and locking the school?

Where the headteacher is a key holder, s/he is able to open and lock the school. Where the head is not a key holder, schools should contact the Local Authority as a matter of urgency. If the headteacher is on strike another member of staff could open the school by agreement.

It is also possible for a member of the governing body, as the body responsible for the premises, to unlock/lock the school.

A number of my lunchtime supervisors are unlikely to be in work. Can I send pupils at home at lunchtime?

The health and safety of the pupils must continue to be of paramount importance.

Schools will need to carry out a risk assessment to ensure that there is adequate cover over the lunchtime period.

Teachers who are paid as lunchtime supervisors and not taking industrial action must continue to work. In other cases, teachers cannot reasonably be asked to cover.

If there is not sufficient cover available, schools can send pupils home at lunchtime. However, prior notification must be given to parents.

It is important to remember that, where pupils are entitled to free school meals, these must be provided.

Strike action may mean that there will be no cleaning staff available on site to clean up after the pupils` lunchtime. What are my options?

Health and Safety considerations mean that a risk assessment has to be made of the effects of unclean dining or eating areas.

The risks will be of two types: the unhygienic nature of food debris attracting vermin and breeding disease: and the physical risk of slips and trips, and children “playing” with old foodstuffs.

It is likely that a risk assessment would show an unacceptable risk; therefore all reasonably practicable steps must be taken to reduce/minimise the problem. Should it prove necessary following the risk assessment to close the school, you should then inform the LA as a matter of urgency. Parents would need to be given the maximum period of warning and asked to take their children off-site at lunchtime.

School timings would have to be curtailed and the possibility considered of a continental day – a continuous five-hour day with breaks only – or a morning only school provision.

If the general school cleaning force is not available over the period of industrial action, the problem becomes school-wide and the above considerations apply to the whole day.

Free dinner pupils must be provided with a free school lunch (which may be cold).

How do I cope with difficulties that may arise over pupils with special educational needs whose teaching assistant may be taking industrial action?

Schools will need to carry out a risk assessment to consider the implications for particular pupils if their individual TA will not be supporting the pupil. It is rarely the case these days that a specific TA is ‘attached’ to a child in any case.However, if the potential risk to the pupil’s health and safety is considered too great,parents should be asked to keep their child at home.

MangingStaffInTheWorkplace.IndustrialAction.FAQs.Schools (24.6.16)