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Strike Action

Following the formal postal ballots, NEU have announced that teachers in state-funded schools, teachers in Wales state-funded schools, support staff in Wales state-funded schools, and teachers in Sixth form colleges in England will be able to take strike action.


NEU have stated that there will be seven days of strike action that will take place in February and March, although any individual school will only be affected by four of the strike days.


The projected strike days are as follows:

  • Wednesday 1 February 2023 - all eligible members in England and Wales

  • Tuesday 14 February 2023 - all eligible members in Wales

  • Tuesday 28 February 2023 - all eligible members in the following English regions: Northern, North West, Yorkshire & The Humber

  • Wednesday 1 March 2023 - all eligible members in the following English regions: East Midlands, West Midlands, Eastern

  • Thursday 2 March 2023 - all eligible members in the following English regions: London, South East, South West

  • Wednesday 15 March 2023 - all eligible members in England and Wales

  • Thursday 16 March 2023 - all eligible members in England and Wales


NAHT has stated that the ballot results amongst leaders showed that 87% voted for action short of strike and 64% for strike action. However, the legal requirement for turnout for a ballot in England is 50%, but this was not met as there was only 42%.


NAHT has stated that they feel their democratic process has been 'compromised by factors outside' of their control, as members were asked to complete a postal ballot and 73% of members said that they had not received one.


NAHT is considering their next steps and will meet with the National Executive Committee this week.


NASUWT has stated that 95% of their members voted for action short of strike action, but the turnout for the ballot averaged 42%.


Therefore NASUWT has stated that they will be continuing their campaign to fight for decent pay for teachers and that they have written to the Ministers in England and Wales to confirm that they remain in dispute over teachers' pay.


Guidance for strike action

The DfE have updated their guidance for handling strike action in schools.


The guidance provides that the decision to open, restrict attendance, or to close a maintained school is that of the headteachers and for academies, this rests with the Trust, but the decision is usually delegated to the headteacher/principal.


Headteachers are advised to consult with governors, parents and the Local Authority, Academy Trust or diocesan representative before deciding whether to close. The DfE expects headteachers to take all reasonable steps to keep the school open for as many pupils as possible.


Consideration will be required to any health and safety risks that may occur, as a result of industrial action in accordance with the Health and Safety at Work Act 1974.


The DfE have stated that schools should prioritise vulnerable children and young people and children of critical workers, as well as pupils due to take public examinations and other formal assessments.


Staff deployment

Employees are not required to advise as to whether it is their intention to take strike action, but employers can ask employees in advance, as to whether it is their intention to strike, in order to enable the school to plan how to manage the strike.


Headteachers may ask other teachers to cover lessons, but they cannot be compelled to provide cover during industrial action, where they are employed under School Teachers' Pay and Conditions.


Cover supervisors, or teachers who are employed wholly or mainly to provide cover can be directed to provide cover, if they are not taking industrial action themselves.


The Specified Work Regulations 2012 requires classes to be taught by qualified teachers in maintained schools and some academies. Free schools, academies established after 29 July 2021 and any academy established prior to this date, but has agreed to a change in their funding agreement, are exempt from these requirements.


For headteachers who wish to take strike action, they should delegate their duties to another member of the leadership team. Where the whole of the leadership team is on strike, then the governing body or academy trust can approach another member of staff to carry out the duties of the headteacher, such as a senior teacher.


Agency staff

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 has enabled schools to engage with agency staff during strike action.


Directly employing individuals

Individuals can be directly employed to cover those on strike, but consideration would need to be given to the employment contract, pay, insurance, pensions and pre-employment checks that will be required.


Volunteers

Keeping Children Safe in Education and the Statutory Guidance: Regulated Activity (children) - supervision of activity with children which is regulated activity when unsupervised, provides the parameters by which volunteers can be engaged to provide supervision during strike action.


Employers

Schools can seek exemptions from strike action with the trade unions in order to avoid disruption to essential services, such as schools road safety officers, school crossing patrols, and employees in residential special schools. In addition to this, exemptions could also be negotiated for employees who would suffer long-term financial loss, such as employees in their last year of service, pregnant women and employees whose state benefits may be affected if they take park in strike action.


Teachers

Teachers are not entitled to take annual leave on strike days.


Teachers will not be required to make up the time or to teach extra sessions following strike action, and so it will be for the school to decide how to best make up for the education that has been lost. In addition teachers cannot be compelled to set work for pupils to complete on the day of the strike.


Strike days should not count as reckonable service for the purpose of teachers pensions. The Teacher's Pension service provides guidance on recording strike days as days excluded on the employees' Annual Return Service record, which will ensure that the pension cover is adjusted appropriately.


The teachers pension scheme also does not provide for members to buy back strike days.


Strike days can impact on redundancy payments for the days lost to strike action, as this reduces the number of full years of continuous employment that the teacher has completed.


Sickness absence

The LGA advise that where an employee is absent prior to industrial action commencing, then the employee should be regarded as being on sick leave, providing that the necessary Fit Note is received.


Where an employee reports sick on the day of the strike, then the employers will need to make its own decision regarding whether the employee will be considered as being on sick leave or on strike, taking into consideration any evidence the employee can provide in relation to their absence/health concern.


Employers may wish to introduce new arrangements for reporting sickness immediately before or during a period of industrial action, such as all periods of absence will need to be certified by a Fit Note, and any potential cost associated with the Fit Note employers should consider paying as a fair and reasonable measure based upon the circumstances.






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