Strikes: Legal changes make preparation challenging

New regulations and a bill wending its way through parliament at speed are making preparing for strikes more challenging, writes Andrea Squires

New regulations and a bill wending its way through parliament at speed are making preparing for strikes more challenging, writes Andrea Squires

27 Jan 2023, 5:00

As walk-outs by teachers have now been announced, the focus now turns to how school leaders should prepare for the strikes. With schools potentially closed and parents forced to take time off work, pressure on government will increase. But there are no easy answers and school leaders will need to consider the impact of sustained action as well as short-term disruption.

While no doubt being personally sympathetic to the striking cause and potentially facing a call to strike by their own union, headteachers have a duty to take all necessary steps to maintain teaching and learning safely. This duty to maintain provision has been brought into sharp focus with the rapid progression of the Strikes (Minimum Service Levels) Bill, which is now at the committee stage of the House of Commons, having been introduced only on 10January.

The regulations will provide for standards to be maintained and employers will have the power to issue “work notices” which, if not adhered to, will remove the employee’s protection from dismissal for striking in breach of contract. Given the strength of feeling on this issue across all sectors, it seems likely that there will be some challenge when the draft regulations are consulted on, assuming the legislation clears the House of Lords. It is worth noting too that the regulations are expected to apply retrospectively, after a strike ballot or strike action has been notified.

It’s difficult to see quite what minimum service the secretary of state will want to protect and how practical this will be. She may draw on guidance and regulations issued during the Covid pandemic, when schools were required to remain open to allow children of key workers and vulnerable pupils to attend, or to prioritise teaching and exam preparation for 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 and what each work notice must say.

This should be a lesson for any minister hoping to legislate their way out of this dispute

Under the school teachers’ pay and conditions document, non-striking staff cannot be asked to cover the lessons of striking colleagues unless they are specifically employed as cover teachers. Those not in a union are allowed to join an official strike and benefit from the protection against dismissal. Those in a union not taking industrial action are not allowed to join any strike organised by a different union, a fact now more pertinent given two of the three unions who balloted couldn’t get over the threshold required for strike action. 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, regulations issued last year (which are themselves the subject of an application for judicial review by the unions) enabled agency staff to be called on to provide cover. How much of an impact this will have in the context of a national strike is hard to assess. Volunteers can be used to provide cover, but they must be DBS-checked.   

The department for education has now published updated guidance on handling strikes. It remains 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. A key focus of the new guidance is the ability of schools to work together to maintain provision, including delivering remote provision. Having learned lessons from the pandemic, some larger multi-academy trusts will be very able to respond effectively to this need.  

This is not without its own controversy though. The pandemic reinforced existing divisions and created new disparities as some were more able to adapt to a different teaching and learning environment than others. The pandemic has clearly widened the gap in attainment, and the strikes may well have the same effect if a solution cannot be found quickly.

Meanwhile, previous legislation that made a national walk-out less likely has arguably made matters worse in terms of widening these disparities. This should be a lesson for any minister hoping to legislate their way out of this dispute.

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