School Strikes – How school leaders can prepare

School Strikes – Preparing for Industrial Action

Given the increasing number of academies, more and more school leaders will be in the unenviable position as employer of having to consider how to respond to a threat of strike action, balancing the needs of staff and pupil interests, as well as the wider community, who will inevitably be impacted if schools close. This will be felt acutely where leadership teams sympathise with the concerns raised by staff. This is no better illustrated than in relation to the current threat of strike action in response to the cost of living crisis engulfing the country. For the first time, the National Association of Headteachers (NAHT), whose members have not on strike before, is balloting members. Whilst the National Education Union (NEU) and the NASUWT have also balloted members and the Association of College Leaders (ASCL) is considering a formal ballot.

It’s hard not to see the current situation as a no-win scenario. Given the teacher pay award in September 2022 was unfunded, any significant pay increase agreed now in response to strike action may follow suit, putting unbearable pressure on school budgets. A one-off payment may be easier to manage (and funding be found for), but in itself may be unlikely to resolve the longer-term issues, if the financial crisis persists.

Strike Action

Whilst one might generally think of strikes (or a refusal to attend and carry out work) when assessing the risk of industrial action, in fact it can take other forms, including a refusal to do any overtime work or duties which are not considered essential to the role. Any disruption to normal business needs to be assessed and a decision made about what alternative measures might need to be taken. But its only a refusal to undertake contractual duties in breach of contract, that will trigger a potential claim for the employer (against staff or indeed the Unions were the action has been induced by the Unions) and the corresponding defence under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA).

Key Stages of Industrial Action

Before a Union can call for industrial action it must have the majority support of a properly organised ballot and comply with a number of procedural requirements. These are set out in statute and summarised below. If these are not lawfully complied with the employer may have grounds to seek an injunction to prevent the industrial action and/or to seek damages.

1. Notification of Ballot to the Employer – this must be served no later than 7 days before the ballot and a copy of the voting paper no later than 3 days before.
2. Arrangements for the Ballot – the ballot must be sufficiently secure to allow all those entitled to vote to do so in secret, without interference and for the votes to be counted accurately and fairly. The use of electronic communications will mean this is easier to organise now than it might have been in the past. Where there are more than 50 members entitled to vote in the ballot, the Union must appoint an independent scrutineer to run the ballot.
3. Turnout requirement – there must be a turnout of at least 50% of the union members entitled to vote. Where a ballot is being called and the level of support is perhaps unclear (i.e. not necessarily supported by a majority of staff), it is likely to be better to encourage all to vote rather than abstain (presumably in protest at the ballot), as that will more directly affect the need to achieve the required level of support.
4. Required level of support – whilst a simple majority of those who vote must vote to strike for strike action to be lawful, a ballot of staff in a school setting will not succeed unless at least 40% of those entitled to vote (i.e. not just those who did in fact vote) must have voted in favour for strike action.
5. Announcement of the result – the Union must take reasonable steps to announce the result of the ballot, including votes for and against, to both members and the employer. This may well be useful information both to assess how much support there is amongst staff, which will help when considering what offers to make to try to settle the dispute, and if a vote fails to assess the risk of any follow up action.
6. Report on conduct of the ballot – the independent scrutineer must issue their report on the conduct of the ballot within four weeks of the ballot taking place.
7. Notice of Industrial Action – this must indicate what action is being taken and when and must be served on the relevant employers (those whose employees the Union expects will participate in the action) at least 14 days before the start of the action. This must state whether the action will be continuous or discontinuous. A continuous action is indefinite. Discontinuous action is a 48 hour strike or a series of one day strikes. In the current context and given the widespread nature of the proposed action, in theory affecting all schools, this may present the Unions with a practical challenge identifying the legal employers especially for schools in multi academy trusts.
8. Start of Industrial Action – any formal industrial action must take place within 6 months of the ballot. Once this period has expired a fresh ballot will be needed. A ballot cannot validate industrial action that has started before the ballot date.

Grounds to Challenge

A strike or other industrial action called by a Union will usually involve a “tort” (the inducement to breach the terms of the employee’s contract), which will give rise to liability on the part of the Union. If there is a genuine “trade dispute” and the requirements under TULCRA for the ballot have been satisfied, the Union will be immune from liability.

Apart from technical breaches in the service of notices etc, common areas of challenge tend to focus on the whether there is a genuine trade dispute and whether the dispute has been properly or adequately summarised in the voting paper, so that staff have not been misled as to why they are voting for strike action. These arguments have come up before in connection with proposals to academize and then as now, the proposed action may be politically motivated or have a strong political element, which might provide justification for injunctive relief. However, the threshold for a successful challenge is likely to be high and employers will need to consider carefully the cost risk of an unsuccessful challenge.

Employers should consider a referral to ACAS as an alternative to a legal challenge and ACAS can help to mediate a solution between the parties. Other options include direct negotiation with the Union, private mediation and judicial mediation. None of these are likely to work though in the context of a national strike and there may well be sense of being at the mercy of the politics.

Given the breach of contract by refusing to work, the employer is likely to be free not to pay striking workers, including workers who have participated in the strike even if not a member of the Union calling the strike. Complicated rules apply though regarding the dismissal of striking workers and advice will be needed where specific action is contemplated.

Preparing for Strike Action

School leaders will of course need to consider carefully what impact a strike will have on the functioning of the school. It will remain the headteacher’s decision whether to close the school if adequate minimum cover cannot be secured and whether pupils or staff will be put at risk. The difficulty lies not just in considering shortages where striking staff are not working, but those who are sympathising with striking staff and refuse to provide cover (or call in sick). It is often not easy to know exactly what the impact will be until it happens. This also brings into play questions around “lock out” where the employer refuses to allow those who are not striking to work and the consequences of that.

Helpfully, agency staff can be called on to provide cover, but again this is unlikely to assist in the context of a national strike.

On 10^th January 2023, the Government published a new bill (the Strikes (Minimum Service Levels) Bill) introducing the possibility of certain public sector employers (including education providers) being obliged to provide minimum service levels if strike action is called. The detail is to be set out in regulations issued by the relevant Secretary of State, after consultation, but which can apply retrospectively, i.e. after a strike ballot.

It seems likely given the current position of the Education Minister that there will be no rush to issue regulations and its likely she will wait to see the extent of any notified strike action before announcing any intentions. Whilst the bill and in turn the regulations will allow employers to issue work notices to ensure a minimum service prescribed by regulation, the practicality of this will need to be carefully considered. Work notices are expected to be served on individuals specifying when work is to be done and what the nature of that work will be. Employers will be required to consult with the Union before issuing a work notice.

There are likely to be challenges implementing this. It might be easy enough to prescribe that, for example, 20% of all trains must still run, but the same cannot be translated to schools so easily. Perhaps some assistance can be gained by comparing the current situation to developments during the COVID pandemic, when schools were required to remain open to allow children of key workers to attend, or to prioritise certain year groups. As with COVID, careful risk assessments will need to be made, with the added complexity of trying to assess how far staff will in practice cooperate with a work notice (even under threat of breach of contract) and, as a consequence, what each work notice must say.

What probably can be said with some certainty is that there is more scope now than ever before to utilise the opportunities presented for remote learning, so that some provision can be maintained notwithstanding the closure of the school. This is not without its own controversy though, as some schools and certain settings were more able to respond quickly and effectively to challenges posed by COVID than others. The same is true for pupils, some of whom will have coped well and had the benefit of support both within the home and broader community and those in less fortunate positions. The pandemic has clearly widened the gap in attainment and the strikes may well have the same effect.

How we can help

The team at Winckworth Sherwood are experienced helping school leadership teams to navigate challenging times. No two settings are exactly alike and a tailored approach may be needed. We will typically provide strategic advice, assess the impact of legal duties and risks and support with any practical steps, including drafting communications and supporting negotiation with Unions. Whilst a national strike ballot will demand a particular response, we can also advise where strike action is threatened as a result of local issues. Our Schools HR team also offer broader HR and employment law support.