It looks like there could be strike action ahead with both teaching and support staff but not necessarily at the same time, which all adds to the challenges of managing a school or academy.

Both the NUT and UNISON are considering strike action in July about pay and pensions but nothing is confirmed. IF NUT members do strike, it will be after Exams so no need to panic about strikes during busy exam times. Other unions may or may not follow suit but nothing is definite as yet.

It looks like there could be strike action ahead with both teaching and support staff but not necessarily at the same time, which all adds to the challenges of managing a school or academy.

Both the NUT and UNISON are considering strike action in July about pay and pensions but nothing is confirmed. IF NUT members do strike, it will be after Exams so no need to panic about strikes during busy exam times. Other unions may or may not follow suit but nothing is definite as yet.

“What actually is industrial action?” I hear you ask. Surprising though it may be, there isn’t actually a legal definition in law. It is established through case law that :

• Industrial action must be concerted action against an employer’s interests.  It doesn’t usually cover action taken by an individual employee.

• It must be taken in order to put pressure on an employer in an attempt to achieve some objective.

Samples of industrial action:
• Collectively staff withdraw their labour
• Refuse to undertake certain parts of their duties/work to rule
• Refuse to carry out reasonable instructions – although that might not necessarily be an industrial action, more of a conduct issue

Is it breach of contract?

Now a key issue for schools to consider is whether a breach of contract is happening. If the employee is working but only providing “partial performance”, we could be talking breach of contract.

Example 1:  A teacher in a maintained school is taking part in the NUT/NASUWT “Action short of strike”. Said teacher normally does some lunchtime supervision. Said teacher chooses not to do it anymore. This teacher in NOT in breach of contract because para 52.2 of the STPCD 2013 prevents teachers from doing so.

Example 2:  A teacher in a maintained school is taking part in the NUT/NASUWT action short of strike. As part of ongoing staff development teachers at the school partake in peer observations and share good practice. This teacher refuses to take part in this anymore on the instruction of her union. The STPCD 2013 states in para 51.11 that teachers should contribute to the professional development of others.

Para 51.16 talks about collaboration with colleagues.  Therefore, this teacher is in breach of contract. So after giving the teacher opportunity to comply, if they don’t then a deduction of salary may be made equivalent to the time that would be spent of participating in these duties for the duration of time they are refusing. 

The difficult considerations for school leaders where there is a strike day are:

1 Do we have sufficient staff to keep the school open?
2 If the school does stay open, how do we cover classes?

That is obviously a management decision but please in mind the “Rarely Cover” arrangements in the school teachers pay and conditions document.  Further advice will be available from either your local authority or you HR Provider.

DfE guidelines state:
“In the event of a strike, to Department for Education expects the Headteacher to take all reasonable steps to keep the school open for as many pupils as possible”. However, legally, there is no requirement to deliver the national curriculum on strike days.

With regard to deduction of pay during a strike, the norm is 1/365th of annual salary. With teachers, the Burgundy Book does stipulate this clearly.

Finally, one question that does come up regularly is:

“Can I ask staff in advance if they intend to strike?”  The answer to that is yes you can.  However, they don’t have to tell you although it would be helpful if they did!