Teacher Strikes 2023 – Detailed, independent guidance for education staff [Archive Reference Article]

Archived Reference Article from 2023

2023: A more recent update of some of the key issues addressed in this article and what to expect during the summer term 2023 has been published here.

Introduction

Industrial action and teacher strikes in England and Wales were announced in January as a result of formal ballot on industrial action by the National Education Union (NEU).

Striking is a historically 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 planned action for this year.

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 and have consulted a range of education employment law specialists to bring concise, objective information to all school staff. 

Dates of strikes

The NEU initially declared seven days of strike action in February and March, though any individual school was affected by four of them. 

• Wednesday, February 1st (England and Wales)
• Tuesday, 28th February (Northern, North West, and Humber regions)
• Wednesday, 1st March (Midlands, Western and Eastern regions)
• Thursday, 2nd March (London, South East and South West regions. Wales, postponed from the 14th February)
• Wednesday, 15th March (England and Wales)
• Thursday, 16th March (England and Wales)

The pay dispute was resolved in Wales following those strikes but a resolution was not found in England.

Further strike dates have been announced for the Summer Term:

• Thursday, April 27th
• Tuesday, May 2nd
• A further 3 days of action in June/July (dates to be confirmed)

What can teachers and education staff expect during the upcoming strike period?

Given the complexities surrounding the law relating to industrial action, there is not a one-size fits all answer that governs what education staff are entitled to do. 

We will try to break down the specifics so that you can understand your own personal situation.

Who is allowed to strike?

This is all dependent on the organisation of which you are or are not a member. 

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)

Within each of these groups, staff will either want to take part in the NEU strike action or not.

We will deal with each group in turn. The situation is slightly more complex for support staff which is explained in a separate section below.

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.

The above applies regardless of position within the school. The same logic applies to headteachers as it does to new and trainee teachers who are salaried (Teach First or School Direct) members of the school. It also applies to those employed on contracts by academies and those on fixed-term contracts e.g. for a maternity cover.

There are a few key exceptions to the above. Supply teachers who are employed by agencies and not directly by schools will not be able to officially join the strike. Those working in the independent sector will not be entitled to strike as the trade dispute concerns state-funded schools only.

What about support staff?

Support staff members of the NEU were also balloted for strike action. The legal threshold for strike action in England was not met and therefore they will be unable to join in the industrial action.

As the lines between teacher and support staff can be blurred, a general rule of thumb to clarify your status as a teacher or support staff would be to identify which pension scheme you are a member of or entitled to join. Teachers will be eligible for the Teachers’ Pension Scheme (TPS) whilst support staff are likely to be members of the Local Government Pension Scheme (LGPS).

If I choose to strike, do I have to inform my employer?

By law, the NEU has to inform affected schools and employers within 14 days of the strike that they intend to take industrial action and provide the schools with the number of their members within that workplace. Individual teachers do not have to provide notice as this is done on their behalf.

The DfE explains that while employees are not required to tell their employers whether they intend to take strike action, employers are able to ask staff in advance if they intend to strike to enable them to plan how to manage the strike.

For non-union members that wish to strike, you do not need to inform your employer that you wish to strike. However, you may choose to do so to assist in contingency planning. This may be of increased relevance for some given that the industrial action is not against the individual school itself but rather the government as a national employer.

Headteachers and employers are allowed to ask who is planning to take action to assist with contingency planning but individual teachers are under no legal obligation to respond and are often encouraged not to do so by the union taking action.

If I choose not to strike, should I tell my employer?

Teachers who are not planning to strike may inform their headteacher that they intend to work on the day of industrial action if they choose to. This will assist the headteacher in making plans for the day. 

However, this is an individual decision and teachers are not compelled to respond to any requests to do so. If the school is closed, teachers will still be expected to attend in person (this may involve crossing an official picket line) although there may be alternative arrangements made for remote learning.

What if I’m in the NEU but don’t want to strike?

No member of any union is compelled to strike and there are laws which govern this. Your union cannot discipline you if you choose not to strike. If you are disciplined for not taking action or for crossing a picket line, you can complain to an employment tribunal within three months of the disciplinary action.

Some union members make the argument that being in a union means that you have a duty to take part in democratic processes such as ballots and supporting decisions made by the membership including one to take industrial action. For those members who do not feel aligned with these activities, you may wish to consider a union alternative such as Edapt.

What can I do if I am in another union e.g. NASUWT and not a member of the NEU but want to join the strike action?

In order to qualify for the legal protections afforded by the legislation you will need to relinquish your membership of your existing union prior to joining any strike. It is advisable that you get written and dated confirmation that you are no longer a member of that union, prior to joining any action.

You then have a choice as to whether you would like to join the NEU or join Edapt to access non-unionsed support and guidance. 

You could also choose to go without any form of edu-legal support although we would recommend that all teachers join either a union or Edapt to ensure that they are adequately protected. We have written about the risks of having no support at all in the following blog post.

If I am permitted to strike, what protection do I have from the existing legislation?

By taking strike action, you are likely to be in breach of your contract. However, “protected” industrial action (i.e. one that has complied with the legal regulations regarding organising industrial action) means that those who are permitted are protected from “fair” dismissal for breaches such as these. This protection lasts for a minimum period of 12 weeks from the start of the action. 

This period may be extended but it depends on the nature of the dispute. Striking staff will not be at risk of dismissal for taking part in the action so long as they are permitted to do so (see above in ‘who is allowed to strike’)

How will I know who else is striking?

For NEU members, local representatives may call a meeting to discuss the upcoming action and how members may take part, covering topics such as how to picket lawfully and within accepted guidelines. For non-union members, it will be a matter of personal preference as to who shares their intentions.

Do school staff get paid if they decide to strike? 

Employees are not entitled to be paid during any period in which they are on strike. 

School staff employed under ‘The Burgundy Book’  – should have their pay deduction calculated on the basis of 1/365th of their annual salary for each day of strike action.

For illustrative purposes, a teacher on M3 of the pay scale in England (not London) earning £31,750 would be deducted around £87 for each day of strike action. This will vary depending on the annual salary of the teacher. It is the gross salary amount that is used for calculations which will include TLR payments. You can use our strike pay calculator to estimate how much our pay will be deducted.

Deductions will likely be made on the next payroll i.e. deductions for February strike days from February payroll.

In other industries such as Transport, unions provide strike pay to compensate workers for loss of earnings but this will not be happening with this industrial action. The NEU has a hardship fund which its members can apply for grants from although it is likely that these will be on a limited basis.

We have written more about this topic in the following support article.

For support staff, it is likely that the same approach will be taken as it is outlined for teachers above. However, this may be dependent on how your contract is written. For example, if your contract states you work Monday to Friday, this may be treated differently to teachers whose contracts typically do not mention days of the week.

Will taking strike action affect my pension?

Yes, taking strike action will have an impact on your pension. The DfE explains that strike days should not count for reckonable service purposes within the TPS.

The TPS website provides guidance on how to record strike days, which should be as “days excluded”, to ensure that pension cover is adjusted appropriately. There can be an impact on redundancy payments if the loss of days for strike action reduces the number of full years of continuous employment that a teacher has completed.

Under the TPS, pensions are calculated as 1/57 of all contributions made during each scheme year which runs April to April. The impact on pensions therefore is that there will be a lower amount contributed during this scheme year (up to 4 days in this case).

For illustrative purposes, a teacher on M3 earning £31,750 per year would lose around £6.11 from their pension if they were to take part in all 4 days of strike action.

What can I be asked to do?

Headteachers may ask other teachers to cover the classes of those taking industrial action.

Where teachers are employed under the School Teachers’ Pay and Conditions Document (STPCD), however, they cannot be compelled to provide cover for other teachers during industrial action. Cover supervisors, or teachers who are employed wholly or mainly to provide cover and are not taking industrial action themselves, can be directed to provide cover.

There is no requirement for striking teachers to make up the time or teach extra sessions following strike action. Schools need to decide how best to make up for pupils’ education that has been lost.

What should headteachers do?

In the DfE’s guidance on strike action in schools, it explains that in the event of strike action at a school, it expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.

The decision to open, restrict attendance, or close a maintained school is for the headteacher. The decision for academies rests with the academy trust, but is usually delegated to the principal.

A headteacher on strike should delegate their duties to another member of the leadership team. If the whole leadership team is on strike, the governing body or academy trust can approach another staff member to carry out the headteacher’s duties, for example a senior teacher or a retired headteacher employed by the school.

Headteachers are entitled to ask staff whether they intend to strike.

How will schools decide whether to remain open or not?

The DfE explains that the decision to open, restrict attendance, or close a maintained school is for the headteacher. The decision for academies rests with the academy trust, but is usually delegated to the principal. Headteachers should consult governors, parents and the Local Authority, academy trust or diocesan representative (where appropriate) before deciding whether to close. In the event of a strike, the DfE expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.

Infant class size legislation limits the size of infant classes to 30 pupils per school teacher. This applies to reception and other classes where the majority of the children will reach age 5, 6 or 7 in that school year. The infant class size limit does not apply to activities normally carried out in larger groups, for example assemblies, sports and other structured or unstructured activities that the school may choose to provide on strike days.

For secondary schools, there are no physical limits on class sizes and headteachers instead will need to make a judgement based on the information available to them whether or not they can safely open the school.

We have written another support on the topic of class size limits here.

What do I need to know about picket lines?

We have published a detailed support article about this topic here.

Beyond raising awareness of the trade dispute, the idea of a picket line is to encourage non-union members to join union members in withdrawing their labour for the day and therefore join them in taking legal industrial action. The phrase “crossing the picket line” refers to when employees within an organisation ignore the requests of striking workers to withdraw their labour on that day. Any member of staff who chooses to work on any of the strike days will be said to have “crossed the picket line”. 

The DfE explains it is lawful for striking members of staff, and union officials who represent them, to picket at or near their place of work for the purpose of peacefully obtaining or communicating for any school teacher whose contract of employment incorporates the The Burgundy Book, pay deductions should be made on the basis of 1/365th of their annual salary for each day of strike action information, or peacefully persuading any person to work or abstain from working. 

The Department for Business, Energy and Industrial Strategy (BEIS), Code of Practice on Picketing (March 2017) states that “in general” the number of pickets should “not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate”.

If people who are neither members of staff at the school nor their union representatives join a picket at the school, the employer should inform the trade union concerned as the Code of Practice provides that lawful picketing must be limited to attendance at the picket’s place of work. If the picketing is unlawful, the employer may apply to the court for an order preventing, or stopping, the unlawful picketing or its organisation.

It would be inappropriate for schools to authorise absence for children to participate in pickets or demonstrations in support of industrial action.

Are there teaching requirements on strike days?

The DfE explains there is no legal requirement to teach the curriculum on strike days.

Maintained schools must ensure that they cover the programme of study for each National Curriculum subject by the end of the relevant key stage. 

Maintained schools and non-maintained special schools are required to meet for at least 380 half day sessions per year but there is no statutory definition of ‘meet’ and no requirement to teach the National Curriculum on each day of the school year.

School leaders may choose to make alternative arrangements on strike days by making use of external companies or volunteers to provide activities that might typically be seen on a ‘drop down day’. For example, the school might employ a sports company to run a series of activities for its pupils.

Striking teachers cannot be compelled to set work for students to complete on the day of the strike and are encouraged by the NEU not to do so. However, if classes are running as normal, some teachers may choose to set work.

How does this affect teachers and staff in independent schools?

Only state-funded schools are affected by the NEU strikes, so strikes in the independent sector will not be taking place. The NASUWT did secure a mandate for strikes in some independent schools in England and Wales in a separate ballot despite not meeting the threshold for state-funded schools.

How does remote learning affect strike days? Will I have to do remote teaching if my school closes?

Different schools will make arrangements based on their staff composition. Some schools may make arrangements for students to come into school whilst others might arrange for remote learning. This will be dependent on how your headteacher decides to manage the resources available to them.

The development of remote learning over the pandemic might make it easier for schools to make alternative arrangements although striking teachers will not be expected to provide materials for this. Non-striking colleagues can be asked to help support these new arrangements but can only be compelled to cover their own classes remotely or in person.

Will my PPA time be carried over to other days?

There is no requirement for your head teacher to allow you to postpone your PPA time if you withdraw your labour on the day that it was timetabled. However, your head teacher may in some circumstances choose to exercise his/her discretion to allow you to take your PPA time on a different day if it can be rearranged to fit around other timetable commitments.

What is the impact on part-time staff?

If you work part-time and your ‘off day’ falls on the strike day, there is no impact whether you choose to strike or not. If you are due to work on the strike day you will be treated the same as full-time staff with adjustments made on a pro-rata basis based on your contract.

I have seen talk about minimum safety levels and new legislation. What is this about?

On 10th January, the government introduced the Strikes (Minimum Service Levels Bill) which would require certain public services (including schools) to deliver minimum safety levels during strikes and allow employers to enforce them. The bill is yet to be passed through parliament so has no bearing on the current proposed action as it stands. Bills are often amended during their passage through parliament so any proposed changes would be subject to change. There has been a mixed reception to the bill across the political spectrum so far. If and when the bill is passed, we will update this guidance accordingly.

Edapt Webinar: free to watch on our Youtube channel

You are able to watch the webinar we hosted providing a summary of this guidance and your frequently asked questions on the topic.

Keeping up-to-date with developments

We will be updating this page on a regular basis with upcoming developments and news.

If you are also an Edapt subscriber, you can contact us for any further help or advice.