Industrial Action 2016

INDUSTRIAL ACTION2016

SOUTHAMPTONCITY COUNCIL

GUIDANCE FOR GOVERNING BODIES & HEADTEACHERS

Background

As the employer of school staff within community schools, Southampton City Council is keen to offer support and guidance to governing bodies and headteachers who are responsible for taking appropriate action in response to any industrial action.

This guidance should be read in conjunction with “Advice for handling strike action in schools” produced by the Department for Education in July 2014.

Governing bodies and headteachers in schools who have opted out of the SLA with Southampton City Council should seek guidance from their Human Resources provider.

PREPARATION

Notification Period

TheTrade Unions are required to giveat least 7 days notice before beginning any industrial action, and must describe the employees who will take part in the action (numbers and categories or workplaces) and state whether the action will be continuous or intermittent. If continuous, the start date must be specified. If intermittent, all intended dates must be specified. Academies will be notified individually.

Contingency Planning

Schools will need to make plans to deal with the potential impactof teaching employees taking industrial action on the running of the school. As far as possible, normal services should be maintained.

Governors/headteachers must review existing continuity plans to make preparations as soon as possible. Thorough preparation is required to:

  • Minimise the impact of the industrial action
  • Ensure statutory duties are met
  • Maintain essential services
  • Maintain Health and Safety and Security of people and premises

Governing bodies and headteachers may ask employees in advance if they intend to take industrial action. However, no individual employee is obliged to provide this information and so this matter must be handled sensitively.Pressure must not be put on employees to either provide information or break the strike.

Having taken into account all available information, governors and headteachers will needto decide whether the school can remain open to pupils during the industrial action, or whether alternative arrangements will need to be made. If school closure is anticipated on the grounds of health and safety, this must be discussed immediatelywith Joanna Casey,Principle Officer Early Years and Education.

Risk Assessment

Governing bodies and headteachersshouldrefer to the existing continuity plan for their schooland undertake a risk assessment of the potential impact on their school during industrial action.

Governing bodies and headteachersneed to be aware of and make appropriate provisions for the Health, Safety and Welfare of pupilsand of staff who remain at work, and consider any additional risks that might be brought about by the strike action,putting plans in place to deal with any risks.

The following should be considered in undertaking a risk assessment:

  • How many teachers are available to undertake normal duties?
  • Will there be any impact to line management responsibilities?
  • Is there adequate cover for the school emergency plan i.e. Fire /bomb threat prevention, gas leak, power failure and building collapse and evacuation procedures?
  • Is adequate First Aid cover available, including paediatric?
  • Will there be adequate supervision of pupils at lunchtime/break times?
  • Will there be sufficient staff to cover pupils with special needs?
  • Security of the site is essential, could this be comprised?
  • Any other health and safety issues that could impact on the school/employees/pupils?
  • If a school is closed, what alternative arrangements can be made for staff who will be reporting to work?

In case of an emergency

Should an emergency occur, in addition to existing continuity plan procedures, schools must also contact Joanna Casey,Principle Officer Early Years and Educationimmediately.

Maintaining services

Governing bodies and headteachersshould consider how they will monitor and keep records of the impact on their school during strike action. This should include undertaking regular impact assessments throughout the period of industrial action and maintaining appropriate records of any issues.This information may be requested by the Council’s HR Professional Support Team.

Agency Staff

The use of agency workers to cover employees absent due to industrial action is tightly controlled by legislation.Normal advice is to avoid “strikebreaking”as it will be seen as provocative and the law around this is complex.

Agency workers MUST NOT cover duties of teachers or any employee taking industrial action. However, in certain circumstances, temporary staff employed directly by the school may be used but Head Teachers and Governors MUSTseek advice from the HR Professional Support Team if this course of action is unavoidable.

EXPECTATION FOR EMPLOYEES TO REPORT FOR WORK

Governors/headteachersmust give an explicit instruction to both teachers and support staff about the requirement to report to work as normal during industrial action if they are not taking part in industrial action. This will avoid any potential confusion, particularly if the school is to be closed to pupils.

If a school will not be operating as normal during industrial action, employeesmust be informed in advance about alternative arrangements that have been made.

Headteachersmust determine what work employees will be expected to perform and where/who they should report to. Employees should not be asked to undertake duties outside of their job description however where this is necessary, such requests must be reasonable.

Employees must be treated consistently and fairly in making alternative working arrangements.

EMPLOYEES WHO DO NOT REPORT FOR WORK

Even if the school is closed to some or all pupils, employees are expected to report for work. Anyone who does not report for work will not be paid, unless there is another acceptable reason for absence.

Employees who are not union members may take industrial action alongside colleagues who are union members. They will not be subject to any disciplinary processes for taking part however pay will be deducted accordingly.

Deductions to pay relate to the breach of contract only and are not punishment for going on strike. Employees absent due to industrial action will not be subject to any disciplinary processes. However if any misconduct/gross misconduct occurs during strike action, the standard disciplinary procedure will be applied. The involvement of police will be requested if necessary.

Pay will not be deducted for an employee who is absent due to sickness that is covered by a doctor’s certificate.

Employees who are absent due to self-certificated sickness during the period of industrial actionwill not normally have pay deducted. However, if the head teacher has good reason to believe that the sick pay regulations have been breached this should be investigated with the employee concerned before making any decision to deduct pay. Your HR Provider can provide further advice on this matter.

The fact that a building is picketed is not a sufficient reason for not reporting for work and pay will be deducted accordingly. Although technically a breach of contract, no disciplinary action will be taken against such employees. Their absence will, however, be unauthorised and will not be paid.

ACTION SHORT OF A STRIKE

Action short of a strike can include employee’s refusing to undertake some of their duties, refusing to carry out reasonable instructions or taking part in a sit-in, go-slow or work to rule. Schools must ensure that provisions are in place to manage the impact of any action short of a strike.

Previous Department for Education guidance (December 2012) confirms an employer’s entitlement to refuse to accept partial performance of duties and to deduct all pay in instances of partial performance. However, schools may decide to take a different approach if it is in the best interests of the school, allowing it to continue to provide education to pupils during the industrial action.

Should schools be notified that their employees will be taking action short of a strike, governors/headteachers must contact Joanna Casey, Principle Officer Early Years andEducation immediately to discuss how this will be managed and to ensure all schools respond consistently.

DEDUCTIONS FROM PAY

Headteachers must maintain clear and accurate records of:

  • Employees who have reported to work during a period of industrial action
  • Employees who are absent from work due to industrial action
  • Employees who have not reported to work for some other acceptable and justifiable reason (e.g. sickness absence, annual leave, non-working day)
  • Employees who have taken action short of a strike (if applicable)

You will need to contact your payroll provider to discuss arrangements for any pay adjustments, providing:

-Full name of employee taking strike action;

-Pay Number;

-Normal working hours that would have applied on the strike day;

-Type of post i.e. teacher or support staff;

Pay is deducted for strike action on the basis of 1/365 of a year’s pay for each day of action for normal full time teachers. Pay is deducted for strike action on the basis of 1/260 of a year’s pay for each day of action for normal full time support staff. Deductions will be made for part time employees based on their work pattern for the day of the strike action or any other strike days. The deductions relate to the breach of contract, they are not a punishment for going on strike.

After a period of strike action,headteachers need to consider carefully before authorising overtime enhancements to ensure the “lost” hours have been properly accounted for

THE RETURN TO WORK

NEOSTwill seek formal arrangements with the trade unions on the terms of the return to work agreement. Arrangements will be communicated accordingly to all schools.

An employee's job or career will not be prejudiced by the fact that they have taken industrial action.

Any disciplinary action arising from misconduct during industrial action will be dealt with in accordance with the relevant policies and procedures.

As far as possible the trade union(s) should ensure there is no recrimination or victimisation against colleagues who did not take part in the action.

TEACHERS PENSIONS SCHEME

Under the Teachers Pension Scheme, absence due to strike action cannot be classed as reckonable service and will be recorded on service records as ‘days out’.

Absence due to strike action will not count as pensionable service and there is no provision under the Teachers Pension Scheme for teachers to buy back strike days. Teachers do however remain covered for the ‘in service’ death grant during periods of absence due to strike action.

If your school uses an alternative payroll provider you will need to contact them directly for advice regarding pension implications.

LOCAL GOVERNMENT PENSION SCHEME

Under the Local Government Pension Scheme, absence on strike for a day or more will not count as pensionable service. The employee can however restore lost service by choosing to pay extra contributions at the rate of 16% of lost pay. The election to pay these contributions must cover all of the period of absence. If these contributions are paid, service will be regarded as having been continuous.

An employee wishing to pay such extra contributions must complete and return the ‘Absence due to a Trade Dispute – Payment of Contributions’ form please contact your payroll provider. The form must be completed and returned to your provider within 30 days from the day on which they return to work (or on which they cease to be employed, if they cease to be employed without returning to work) or such longer period as the authority may allow.

GUIDANCE ON PICKETING

Picketing is lawful if a person in line with a stated trade union dispute:

  • Attends at or near his / her own place of work; or
  • Is an official of a trade union, at or near the place of work of a member of that union whom he or she is accompanying and whom he or she is representing;

Picketing should be for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person at work to abstain from working.

The statutory right to picket does not extend to a right to attend on land against the will of its owner. No picketing will be allowed within the council’s buildings or land - this includes schools.

The BIS code of practice recommends that ‘pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from a workplace’.

Picketing is a sensitive matter and headteachers should monitor the situation. If it is considered that it reaches an unpleasant or intimidating level, it may be necessary for the head teacher to support employees who wish to gain access across a picket line.

If picketing goes beyond peacefully obtaining or giving information or seeking to persuade a person to work or not to work, or if it is intimidating or impedes free access to the premises it can become a criminal matter. In these circumstances the head teacher shouldseek the cooperation of local union officials to persuade the pickets to act reasonably. As a last resort the assistance of the police may be requested. Should misconduct occur, employees will be subject to the normal Disciplinary Procedure.

COMMUNICATION

  • Schools must communicate with employees and parents at the earliest opportunity to ensure they are made aware of any impact to their school during strike action.
  • Governors/headteachers must prepare a letter to all school employees based on the draft provided by the Counciland ensure all employees have received a copy of the communication.
  • Schools can make an entry on the School Closures page of the Council’s website to confirm whether the school will be open, partially open or closed on a strike day.
  • Schools should contact the Council’s media team who can be contacted on 023 8083 2000 or email , who will arrange further communications via Radio Solent and other local media.
  • Governing bodies and headteachers should also advise the Customer Contact Centre (023 8083 3000)of any anticipated impact on their school so that they can respond appropriately to any contact from the public.

RECORDING PUPIL ABSENCE RESULTING FROM INDUSTRIAL ACTION

Whenever pupils are prevented from accessing learning as a consequence of enforced school closure it is important to ensure that pupil absence is correctly recorded so that a good understanding of attendance within the school can be maintained for future reference. For the purposes of consistency, the Authority is advising that absence relating to industrial action is coded as “Y” – enforced closure. If you wish to know how to apply the code, please contact your IMS support provider.

DEALING WITH APPROACHES FROM THE MEDIA

If you are approached by a journalist about the impact of a strike on your school please direct them to the council’s media team who can be reached on 023 8083 2000 or

DEALING WITH COMPLAINTS OR COMMENTS FROM THE PUBLIC

Any complaints or comments about the industrial action should be referred to the Customer Contact Centre on 023 8083 3000 who will respond accordingly.

SPECIFIC ISSUES FOR EMPLOYEES

  • Note that a pregnant employee who chooses to strike will not have pay deducted because of an agreement with the recognised unions in this matter (it would potentially affect maternity payments).
  • Note that employees who are not union members may take industrial action alongside colleagues who are union members. They should not be subject to any disciplinary processes, although they should have pay deducted for the day.

FURTHER ACTIONS

After the day of action

Notify your payroll provider of deductions from pay, they will probably have specific forms that you will need to complete to facilitate this so please contact them in advance.

FURTHER ADVICE

If you require further advice, please contact your Human Resources Provider. Alternatively contact the HR Professional Support Team by telephoning 023 8091 7770 opt 6. If HR receives any further guidance or advice, it will be emailed to you immediately.

Southampton City Council

HR Professional Support Team

June 2016