Managing Industrial Action in Your Academy or Maintained School - FAQs
In these FAQs we consider some of the practical issues which schools are facing in managing the strike action and the questions our clients have been raising with us
Managing Industrial Action in Your School - Frequently Asked Questions
- How much notice should we be given of strike action?
- Can we ask staff about their intentions for the proposed strike action?
- Are we required to teach the curriculum on strike days?
- If the school remains open to all pupils, what are the requirements regarding staff: child ratios?
- Do we have to pay employees who go on strike?
- How much can we deduct from employees' wages for taking strike action?
- Can we dismiss the strikers?
- Can we sue the unions for the financial cost?
- Can employees who are not members of the union go on strike?
- Can we arrange for existing staff who choose not to strike to cover for those that do opt to strike?
- Can we use agency staff to cover?
- Can I directly employ temporary staff?
- Can we use volunteers?
- What if staff call in sick but I believe that they are on strike?
- What are the rules on picketing?
How much notice should we be given of strike action?
Employers should be given 14 days' notice of any strike action by the trade union.
Can we ask staff about their intentions for the proposed strike action?
You can ask employees in advance if they intend to strike, to enable you to plan how to manage the strike. We would advise that this exercise is carried out in the spirit of making plans to deal with absences. We appreciate that there are clear health, safety and safeguarding issues involved in the decision to open if there is an inadequate ratio of staff and as such it is reasonable to enquire about the intentions of staff. However, there is no obligation on your staff members to inform you that they intend to take part in industrial action. Should staff participate in lawful industrial action they are protected from being subjected to any detriment as a result.
Are we required to teach the curriculum on strike days?
Maintained schools and academy schools have different legal obligations regarding curriculum delivery, however on strike days there is no legal requirement to teach the curriculum. The DfE has produced guidance to help schools stay open for as many pupils as possible, either through bringing classes together for lessons or restricting attendance. Vulnerable children, children of critical workers and pupils who are due to take public exams or formal assessments are given priority. Where schools are not able to provide face-to-face education for all pupils, the DfE has encouraged schools to provide remote education to ensure every child has access to learning.
If the school remains open to all pupils, what are the requirements regarding staff: child ratios?
The requirements relating to supervision and minimum qualifications vary according to the type of school and age group of children attending the setting. The requirements are included in the Statutory Framework for the Early Years Foundation Stage (EYFS). In maintained nursery and infant schools the staff:child ratios for classes with children aged three and over are 1:13. One staff member must be a school teacher and one other member of staff must have a level 3 qualification. Where there is provision for two year olds, the ratios are 1:4 with one member of staff holding a level 3 qualification and at least half of the remaining staff with a level 2 qualification. There is some flexibility built into the EYFS to allow for changes to the ratios, but these can only be made in exceptional circumstances and where the quality of care and safety and security of children is maintained.
Reception classes in maintained schools and academies are also subject to infant class size legislation which limits the size of infant classes to 30 pupils per school teacher (subject to permitted exceptions) while an ordinary teaching session is conducted.
There are no class size limits for older pupils so schools may combine classes and teachers, so long as pupils' health and safety is ensured. When making contingency plans we recommend schools review the requirements in the EYFS and the DfE guidance Health and safety for school children: class sizes. More information on staff deployment in the event of emergencies can also found in the Department for Education's Emergency Planning and Response Guidance.
Do we have to pay employees who go on strike?
No. An employee is in breach of their contract of employment if they do not work, and they are not entitled to be paid.
How much can we deduct from employees' wages for taking strike action?
The general rule is that you can deduct a day's pay for a day's strike.
For teaching staff employed on Burgundy Book terms a day's pay shall be calculated based on 1/365 of salary for each day of the period of absence.
Can we dismiss the strikers?
No. If the unions have complied with the law in relation to the ballot and notice requirements, they have immunity from action.
Can we sue the unions for the financial cost?
No. If the unions have complied with the law in relation to the ballot and notice requirements, they have immunity from action.
Can employees who are not members of the union go on strike?
Yes. Protection from dismissal extends to non-union members. Such staff can participate in any strike action but would also lose a day's pay for each day of strike action. However, members of other unions that are not supporting the strike will not be afforded the same protection as striking unions and non-union members.
Can we arrange for existing staff who choose not to strike to cover for those that do opt to strike?
Yes. Leaving aside the fact that replacing workers may serve to inflame the existing dispute, there is no legal restriction on employers reallocating the duties of their own directly employed staff.
Can we use agency staff to cover?
Yes (save for in Wales), the prohibition on using agency staff was repealed on 21 July 2022 and it is no longer a criminal offence for an agency to supply agency workers to cover the duties of striking employees. However, the new Regulations are currently subject to judicial review so the position may change again in future. Employers will also need to consider whether an agency worker will be sufficiently skilled to cover the striking employees' work without any health and safety or reputational risks arising.
Can I directly employ temporary staff?
Yes, you are permitted to do this. All necessary safer recruitment checks will need to be completed before the newly appointed staff are available to provide cover during the strikes. You can also use existing staff from other parts of the organisation to provide cover if the resource is available.
Can we use volunteers?
You can use existing members of the school volunteer workforce who have relevant DBS checks to provide supervision; and or identify new volunteers to support existing staff or volunteers for whom relevant checks have been carried out. These volunteers would need to be supervised by another member of staff or volunteer with a DBS check. We would recommend schools refer to the statutory guidance Keeping Children Safe in Education and Statutory Guidance: Regulated Activity (children) – supervision of activity with children which is regulated activity when unsupervised for more information on arrangements for the safeguarding and supervision of children. Guidance on DBS checks can be found here: ‘DBS checks (previously CRB checks)’.
What if staff call in sick but I believe that they are on strike?
If staff comply with the usual certification requirements then you will need to treat their absence as sickness (unless there is very credible evidence that they are not sick and participating in the strike).
If you fail to pay sick pay on the basis of an erroneous belief, then you are in danger of an unlawful deduction of wages claim and/or constructive dismissal claim.
What are the rules on picketing?
Picketing is only lawful if it is carried out peacefully at the employees' own place of work during industrial action, with the intention of persuading others not to work during the strike, or spreading information about the dispute. Intimidation or threatening behaviour towards those wishing to cross the picket line or continuing to work during the strike is unlawful. For further information there is a Code of Practice.
For further advice and support, please contact Alice Reeve on 07741 271 363. Alternatively please complete the form below.
This document is provided for general guidance only, and is not intended as specific legal advice for any particular client or transaction.