Strikes in Schools: can I receive disciplinary action for striking?

Overview

We have been contacted by a number of school staff who have previously 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 being taken by Unions.

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. 

You can find more about Edapt by clicking here.

In this article, we summarise the updated guidance from the Department for Education (DfE) on Handling Strike Action in Schools (published August 2023) 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 balloted member of a trade union organising an official strike:

All balloted members 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 industrial action, membership of the union will supersede any other union memberships e.g. if a teacher is a member of other Unions, the teacher can lawfully take part in balloted action.

• A member of another trade union not arranging strike 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 (non balloted union) membership. They would then be eligible to strike and would not have to join the striking union 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.

• Not a member of any trade union (including Edapt subscribers):

Edapt subscribers and non-trade union members – are entitled to join the industrial action despite not being a member of the union. 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.