[Archive Reference Article]

*Edapt is an independent and apolitical organisation, founded by teachers and does not take a view on political issues including industrial action and teacher strikes. Edapt neither supports nor condemns the planned strikes but instead focuses on supporting its individual subscribers and the wider sector with the necessary information for individuals to make their own, personal decisions. This support article is written on that basis.

Introduction

Teachers and education staff will be faced with the prospect of making a personal decision about whether they will join that action or face ‘crossing the picket line’. 

For many, this will be their first experience of strike action and there is understandably some anxiety about how it will play out within the sector. Whether you are in favour or not, or perhaps still undecided, this support article will explain in an objective and plain manner, the legal framework that staff on all sides of the debate should be aware of.

The fact that staff in the education sector belong to a variety of unions and organisations inevitably means that there is no ‘one-size fits all’ advice or guidance that is suitable for everyone. The variance in results from the ballots held by different unions means that individuals will find themselves subject to different situations when it comes to the law. With differing opinions, come differing paths for individuals to choose which are in line with their values.

It is important to note that the issue of industrial action is a complex issue both in the reasons why it has been chosen by union members and also how it is implemented. Nuances will exist and it is paramount that teachers and educators take into account how their own individual situation might differ from general guidance. 

This article will try to explore some of those nuances but we would advise that if you are still unsure to either contact Edapt as a subscriber or non-union member, or if you are a member of a particular union, to seek specific guidance from them.

Whilst we go into some detail about the impacts of potential negative behaviours, we do not expect teachers and education staff to engage in these but want to make clear the legal situation regarding these so that staff do not inadvertently find themselves on the wrong side of the law. We know that the teaching profession holds itself to high moral standards and we don’t expect that to change this week!

Understand whether you can lawfully join the strike action.

It is important that you know where you legally stand when it comes to joining the industrial action. This is explained in detail in our recent guidance document linked here. To summarise, you will likely be in one of three positions:

1. A member of the NEU and therefore entitled to strike
2. A member of another union and therefore not entitled to lawfully strike.
3. Not a member of any union (this includes Edapt subscribers) and therefore entitled to join the strike action.

Please read the guidance for an explanation of some of the nuances surrounding support staff.

Since the NEU announced their industrial action, union members may have changed their membership status. It is the status of your membership on the day of the industrial action that will count from a legal perspective. 

For members of other unions who are in support of the industrial action but are lawfully not allowed to take part, it is important to note that you will not be protected by the same legal immunities afforded to NEU members and non-union members if you withdraw your labour (although there are some exceptions). Initial advice and guidance from various sources, including some unions, implied that this would not be the case. That guidance has now been updated to reflect the actual legal framework.

For support staff members within the NEU in England specifically, we have some concerns over some NEU guidance which appears to suggest that they would be unlikely to be threatened with disciplinary action should they choose to join the industrial action. In quoting the Local Government Association guidance, only some of the paragraph was quoted:

 “Where picketing takes place, employees not directly involved in the industrial action may refuse to cross picket lines. Such employees can normally be regarded as being on strike and treated accordingly.”

It is important to consider the full context of the guidance as the remainder of the paragraph states:

“That includes in terms of pay deductions. It is also worth noting that members of trade unions which have not balloted for industrial action or which have balloted but either a ‘no’ vote was returned or the necessary voting thresholds were not reached do not have the same statutory unfair dismissal protections afforded to others going on strike.”

Our advice as an organisation would be to ensure that you have certainty over your legal status and to not leave yourself open to any uncertainties however likely or unlikely they are deemed to be.

If you have any doubts about where you stand, seek additional guidance from verified sources. Edu-twitter might not be your friend here!

Decide whether you want to join the industrial action

Ultimately, each individual has to come to a decision as to whether they will take part in the action or not, although it is imperative that you understand your own legal situation first (see above). Whilst there may be opinions within schools, unions and other organisations, it is up to the individual to decide whether they wish to take part or not. The NEU is not formally instructing members to take action and cannot compel them to do so. They are permitted to encourage their members and other non-union members to join their action.

If you do wish to join the action and formally withdraw your labour, our previous guidance details the likely outcomes of this. You may also wish to join a picket line or other activities that the NEU will be arranging on the day of the strikes such as local rallies (more details below).

If you do not wish to join the action, it is likely that you will have to cross a picket line in order to complete your work for the day. We explain more about picket lines in the next section.

What is a picket line?

A picket line is where workers and trade union representatives stand outside a workplace to tell other people why they are striking. As part of this action they can also ask but cannot compel other people withdraw their labour or to not to do some of their usual work. This is similar in the way that headteachers were allowed to ask teachers in the lead up to the strikes about their strike intentions but staff were not compelled to give an answer.

Pickets typically have placards, banners and leaflets which are designed to raise awareness of their dispute and also to persuade other workers to not work.

What does the law and guidance say about picket lines?

A code of practice on picketing was published in March 2017 by the Department for Business, Energy and Industrial Strategy (BEIS) and provides guidance on both common practices regarding picketing but also sets out the legal framework for how pickets need to comply with both civil and criminal law. The code itself does not impose any legal obligations on proceedings but failure to follow the code may be taken into account for any subsequent court proceedings or as part of a tribunal where they are considered to be relevant.

There is no legal “right to picket” but attendance for the purpose of peaceful picketing is recognised to be a lawful activity. However, the law does impose certain limits on how, where and for what purpose picketing can occur. We will try to summarise the main points below with relevance to this particular trade dispute.

It is a ‘civil wrong’ to persuade someone to break their contract of employment but the law exempts those from liability if they are part of a lawful picket. The legislation provides pickets and picketers with special statutory immunities but these only apply to lawful pickets. The only purposes of picketing declared lawful in statute are:

• peacefully obtaining and communicating information
• peacefully persuading a person to work or not to work

The statutory immunities do not provide protections for other ‘civil wrongs’ or any ‘criminal wrongs’ which are covered later in this guidance..

Picket Supervisors

As this dispute involves a recognised trade union, each picket line is required to have a picket supervisor who is either a trade union official or other member of the union. In most cases this will likely be your school’s NEU rep or perhaps a local or regional representative. The picket supervisors are required to be familiar with the code of practice if the picket is to be deemed lawful. Picket supervisors are likely to have received training in advance of the industrial action from the NEU and should be easily identifiable e.g. high viz jacket, armband, badge etc

Picket lines and the civil law

The law protects peaceful communication and persuasion but it does not give pickets any protection against civil proceedings from being brought against them which amount to other separate civil wrongs such as:

• unlawful threat or assault;
• harassment (i.e. threatening or unreasonable behaviour causing fear or apprehension to those in the vicinity);
• obstruction of a path, road, entrance or exit to premises;
• interference (e.g. because of noise or crowds) in the rights of those neighbouring properties (i.e. private nuisance);
• trespassing on private property including the school premises if permission has not been given.

The law does not impose a specific limit on the number of people who may picket at any one place although the guidance suggests six people as a maximum at any one entrance or exit. The police have discretionary powers to limit the number of pickets where they have reasonable grounds for believing that a breach of the peace (a criminal offence) may occur. Police officers have no responsibility for enforcing the civil law.

Picket lines and the criminal law

The statutory immunities provided to picket lines do not provide any protection for breaches of criminal law. Pickets may exercise peaceful persuasion but it is a criminal offence for pickets, as it is indeed for all people:

• to use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the sight or hearing of any person – whether a worker seeking to cross a picket line, an employer, an ordinary member of the public or the police – likely to be caused harassment, alarm or distress by such conduct;
• to use threatening, abusive or insulting words or behaviour towards any person with intent to cause fear of violence or to provoke violence;
• to use or threaten unlawful violence;
• to obstruct the highway or the entrance to premises or to seek physically to bar the passage of vehicles or persons by lying down in the road, linking arms across or circling in the road, or jostling or physically restraining those entering or leaving the premises;
• to be in possession of an offensive weapon;
• intentionally or recklessly to damage property;
• to engage in violent, disorderly or unruly behaviour or to take any action which is likely to lead to a breach of the peace;
• to obstruct a police officer in the execution of his duty.

It should be noted that criminal convictions can prevent teachers and those working with children from working in the sector. This is particularly relevant to acts of violence and intimidation.

What type of behaviour might be deemed intimidating? What should picketers be aware of?

Whilst we would not expect teachers and education staff to engage in intimidating behaviour, staff should pay particular attention to the language they are using on placards and/or in comments made to other staff members. Comments designed to be humorous, could be problematic if not carefully considered. The general advice would be to err on the side of caution and to consult your picket supervisor if in doubt.

The law governing picket lines is an old statute (the Trade Union Labour Relations (Consolidation) Act 1992) and does not specifically address the use of electronic communication or social media. However, those taking part in the action should be careful about what they post online or how they communicate with colleagues as this could be used as evidence of intimidation. Teachers and education staff are also bound by their employment contracts, professional standards and codes of conduct which may be breached.

I have seen the term ‘scab’ being used to describe people who aren’t striking? What does this mean?

Scab is a derogatory term used to describe union members who refuse to go out on strike or workers who are hired to cover the work of those striking. Also known as strikebreakers. Use of this term towards members of staff working on the day of the strikes is inappropriate and would likely be deemed intimidating. Whilst there are obviously strong views as part of the ongoing trade dispute, it is important that those discussions and debates are held in a respectful manner. 

What does ‘crossing the picket line’ mean?

You may have seen the term ‘crossing the picket’ in use. Put simply this just means to ignore the requests of picketers to withdraw your labour and to go to work as normal. This may involve actually physically passing by the picket line on foot or in a vehicle, or potentially with some schools resulting to remote learning, we may now see a version of ‘virtually’ crossing the picket line.

Whilst some staff may be anxious about this, pickets should be peaceful and not obstruct you from going to work. If you have concerns about the conduct of a picket line, these should be reported to your employer.

Under what circumstances can I refuse to cross the picket line and not be disciplined?

Generally speaking, those workers who refuse to cross the picket line will be treated as having withdrawn their labour and be in breach of their contract. (See our previous guidance for how this works). However, if a worker has reasonable grounds to believe that crossing the picket line would put them at risk of injury, then they may be exempt from this. In this instance, staff should contact the headteacher or leadership team to share their concerns and 

How can I report for work?

For those not striking, there may be special arrangements put in place for how your attendance to be recorded. Schools should make clear about how this will happen. For example, a staff meeting may be called at the beginning of the day to take a register of attendees. Again, for those working from home, there may be separate arrangements. If you are unsure about how this is going to happen, you should ask your school for more details.

If I want to support the picket line but cannot lawfully join it, what can I do?

Some members of other unions such as the NASUWT may have voted to take part in industrial action but are unable to do so because the ballot did not meet the threshold for lawful action. They may still offer to support the picket line perhaps through their comments to their colleagues as they cross the picket line, support before and after the working day or by refusing to cover the work of striking colleagues.

Refusing to cross the picket line may be regarded as unofficial strike action and staff leave themselves open to further disciplinary action without the protections that those taking part in the action officially will have.

If I have joined the action, what am I entitled to do on the day?

Whilst there will be many activities being run by the NEU in support of the action, you are entitled to use the day as you see fit. Some staff may join their local picket, some may attend a regional rally, whilst others might catch up on the life admin that usually waits until the school holidays. As with much of this guidance, it is an individual decision and you cannot be compelled to do anything.

If I am an NEU member can I choose to not to take part in the industrial action?

Yes. Members have the legal right to decline any call to take industrial action.

What will happen in my school on the day of the strikes?

This will be variable between each individual school. By now headteachers and leadership teams should have a plan of action in place as to how they will deal with action. This may include closing the school completely, partially opening,

The latest survey from Teacher Tapp which surveyed almost 9000 teachers gives an indication of how this might affect schools across the country.

Source: Teacher Tapp

Further questions

Whilst this guidance tries to inform you of the main details, you may still have questions. Edapt subscribers can make use of our professional casework team who have already answered many questions over recent weeks.

If you are a member of a union, you may wish to contact them in relation to specific issues concerning expectations.