At the time of writing, teachers in schools across England and Wales are still planning to take strike action on Wednesday (March 26) due to an ongoing dispute over pay and work conditions, including the introduction of performance-related pay and stricter pension packages.
The strike action is being undertaken by members of the National Union of Teachers. The union is running a joint campaign of industrial action with the NASUWT, and while the NASUWT has pledged not to strike this term in light of ongoing talks with the Department for Education, it has said it will review its position in the run-up to Easter.
Ahead of the scheduled strike later this month, the government issued guidance for schools on the measures it believes they could put in place to stay open. However, these are only guidelines and a thorough risk assessment should still be undertaken in order to establish whether keeping the school open is a viable and safe option.
Schools should seek a balance between a business-as-usual mentality and mitigating the health and safety risks of reduced supervision.
Who decides?
The Department for Education expects a school’s headteacher to take all reasonable steps to keep schools open on strike days for the greatest number of students possible. This can be achieved by keeping the school open as normal or opting for a partial opening. The final decision is down to each respective headteacher, and in the case of academies, it will be up to the academy trust, although this responsibility will usually be taken by the principal. When making this decision, it is advisable for the headteacher to consult governors, parents, the local authority, academy trust or diocesan representative if appropriate, before deciding to close.
During the decision-making process, headteachers are entitled to consult with staff to ascertain whether they intend to strike, although there is no requirement for them to disclose their intentions.
In the event that a headteacher themselves decides to strike, their responsibilities should be delegated to another member of the school’s leadership team. If the entire leadership team are on strike then the governing body or academy trust can approach another suitable member of staff to take on the duties.
Health and safety
The Health and Safety at Work Act 1974 stipulates that a school must take practical steps to ensure staff and students are not exposed to health and safety risks. In the event that a school partially opens, headteachers must give thought to whether reduced staff levels will provide adequate supervision for the remaining students.
Staff cover
A headteacher is entitled to ask other teachers to cover the classes of colleagues who are taking strike action. However, teachers employed under the School Teachers’ Pay and Conditions Document are not obliged to cover striking teachers’ classes.
Under the Specified Work Regulations 2012, classes are required to be taught by qualified teachers in maintained schools and some academies. Support staff are able to carry out “specified work” provided they are subject to the supervision of a qualified teacher and the headteacher is satisfied that they have the requisite skill to undertake the work.
Striking teachers are not entitled to be paid while on strike, but there is no requirement for them to make up lost time or take annual leave during the industrial action. Any pre-booked holidays on the day of the strike will be honoured, but most school policies dictate that no retrospective booking of annual leave can be made during, or following the declaration of, industrial action.
Collaboration
Schools may choose to merge groups and classes, with teachers and support staff working together. This can only be done where it is clear that there is no risk to students’ health and safety. In most cases, collaboration may be more appropriate for older students as there are no set staff-to-pupil ratios as there are when supervising students under the age of seven.
Employing cover
The Conduct of Employment Agencies and Employment Business Regulations 2003 prevent employment businesses from supplying staff to cover striking teachers during industrial action. However, a school can directly employ individual teachers to cover during the strike, and schools may wish to join together to build a “pool” of potential supervising teachers. In the event that a school wishes to employ cover for one day, they will need to consider the following:
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Employment contract: it is advisable to issue the employee with a fixed-term contract setting out all key terms and specifying the one day duration.
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Pay: the School Teachers’ Pay and Conditions Document applies to all teachers employed in maintained schools. The amount of pay and date of payment should be communicated to them before they start work.
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Pension rights: under the Teachers’ Pension Scheme all teachers are entitled to the same pension benefits regardless of whether they are employed for one day only or longer.
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General legal obligations: many legal obligations are effective from day one of employment. For example, employees will be protected from discrimination and bringing whistleblowing claims should these arise.
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Safeguarding: possibly one of the biggest concerns for schools is effective safeguarding. Like recruiting any new member of school staff, a search on the barred list along with an enhanced criminal record check must be obtained. If the cover teacher is transferring from a similar position without a break in employment of more than three months, the school only needs to undertake a barred list check. They may choose to carry out an enhanced criminal check if necessary.
Curriculum delivery
During strike days the school is not required to deliver the planned curriculum, and it is not obligatory for teachers to set students work to be completed while they are striking.
Maintained and non-maintained special schools are required to meet at least 380 half-day sessions per year, but there is currently no statutory definition of “meet” and certainly no requirement to teach the curriculum on every day of the school year.
Parental litigation
Parents do not have an express right for compensation if they have been adversely affected by a lawful strike.
Summary
A strike can be a disruptive time for everyone involved and is not entered into lightly. A school should try and implement as many of the above suggestions as appropriate in order to effectively manage the situation and respect the rights of teachers, while balancing this against the educational needs of their pupils.
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Paul Menham and Paul Maddock work in the education sector at national business law firm DWF.