Teacher Strikes 2023: can I receive disciplinary action for striking?
We have been contacted by a number of school staff who have been threatened that their school will take disciplinary action if they take part in strike action.
Striking can be a divisive subject and this article aims to set out in plain, objective terms, the facts surrounding the issue without judgement and with specific focus on the details relating to the action for February and March by the NEU.
Edapt are an apolitical and independent organisation (not a trade union) who offer edu-legal support and professional casework services in individual employment disputes and allegations, similar to some of the services offered by a traditional trade union.
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In this article, we summarise the updated guidance from the Department for Education (DfE) on Handling Strike Action in Schools and have consulted a range of education employment law specialists to bring concise, objective information to all school staff.
Can I receive disciplinary action for striking?
You will need to check your eligibility to strike, as potentially your school could take disciplinary action if you are not eligible to strike.
Broadly speaking, staff can be divided into three groups:
- A member of the NEU
- A member of another trade union e.g. NASUWT, NAHT, ASCL etc
- Not a member of any trade union (including Edapt subscribers)
- NEU members – all teaching members of the NEU currently working within state-funded schools are entitled to strike on the announced dates although this is not compulsory. Whether members voted or not and how they voted is irrelevant as votes are cast confidentially. For the purposes of this specific industrial action, membership of the NEU will supersede any other union memberships e.g. if a teacher is a member of both the NEU and NASUWT, the teacher can lawfully take part in the NEU action.
- Members of other trade unions – all current members of other trade unions are not permitted to take part in the strike action and will not be protected by strike legislation. If members wish to join the strike action, they would have to relinquish their existing membership. They would then be eligible to strike although would not have to join the NEU in order to join the strike so long as their previous union membership has been cancelled. It may be advisable to get this in writing to be certain.
- Edapt subscribers and non-trade union members – are entitled to join the industrial action despite not being a member of the NEU. All those joining the action on this basis will be afforded the same protections under current legislation.
ACAS explains that employees who take part in an official strike are protected by law.
Employers should not cause ‘detriment’ to anyone who strikes.
Detriment means someone experiences one or both of the following:
- Being treated worse than before
- Having their situation made worse
Examples of detriment could be:
- Their employer reduces their hours
- They experience bullying or harassment
- Their employer turns down their training requests without good reason
Can I be dismissed for taking part in strike action?
GOV.UK explains you can’t be dismissed for industrial action if:
- It’s called as a result of a properly organised ballot
- It’s about a trade dispute between workers and their employer (eg about your terms and conditions)
- A detailed notice about the industrial action (which is legally required) has been given to the employer at least 7 days before it begins
You can claim unfair dismissal at an employment tribunal if you’re dismissed for taking industrial action at any time within the 12 weeks after the action began.
You could be dismissed for taking part in industrial action if:
- The union hasn’t held a properly organised ballot
- The union hasn’t given the employer the correct notice for balloting members or taking action
- The union hasn’t called its members to take action because they think the dispute is settled or action is called by someone who doesn’t have the authority to do so
- It’s in support of workers taking action against another employer (otherwise known as ‘sympathy’ or ‘secondary’ action)
- It’s in support of only employing union members (otherwise known as a ‘closed shop’)
- It breaks any other parts of industrial action law
If you take part in industrial action that breaks the regulations and you’re dismissed, you can’t usually claim unfair dismissal if all employees taking part are dismissed as well.
If you are an Edapt subscriber, and have received any threats or are confused about your current position when it comes to strike action, you can contact us for further advice and support.
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The information contained within this article is not a complete or final statement of the law.
While Edapt has sought to ensure that the information is accurate and up-to-date, it is not responsible and will not be held liable for any inaccuracies and their consequences, including any loss arising from relying on this information. This article may contain information sourced from public sector bodies and licensed under the Open Government Licence. If you are an Edapt subscriber with an employment-related issue, please contact us and we will be able to refer you to one of our caseworkers.