With teachers striking this week and further industrial action expected before Christmas, Allison Cook considers the key legal issues for schools.
Government changes to the School Teachers' Pay and Conditions Document, Teachers’ Pensions and workloads will affect many schools. Schools are likely be affected by the NUT and NASUWT's proposed regional strikes in October and national one-day strike before Christmas. Here we address some practical questions to ensure, as far as you are able, that you are "strike ready".
By way of reminder, industrial action is only legal for unions if they comply with complex balloting and notice provisions. In essence the ballot should be of members who might be called out and should be accurate. Each employer should have received a notice of intention to ballot seven days before the ballot, a copy of the paper three days before and notification as soon as reasonably practicable. Notice should be given seven days before action (on a Monday for the following Monday). It is not as easy as it used to be to stop or delay strikes on technical grounds, but if you think that there might be a defect, you should take expert advice.
What follows is some straightforward advice to frequently asked questions. Please note however that this area is subject to new developments and shades of grey. Please do take specific advice before taking any specific action in your school.
Do we have to pay employees who go on strike?
No. A teacher is in breach of their contract if they do not work and they are not entitled to be paid.
Can we dismiss the strikers?
No, not in the first 12 weeks of a strike. Although the teachers are in breach of their contract they are protected from dismissal.
Can we sue the teachers for the school’s losses as they are in breach of contract?
Yes. Ironically the law only protects the unions. Every striking teacher is in breach of contract and if you could prove the direct loss as being caused by that individual teacher (less the pay which you do not have to pay them) then it is legally possible to sue the striking teacher. However, employers do not take this action as proving loss is difficult and it would destroy good industrial relations.
How much can we deduct from their wages for taking strike action?
You can deduct a day’s pay for a day’s strike. A day's pay will often be defined in the contract of employment. If the contract does not define a day's pay then, if employees are paid a salary, this is deemed to accrue from day to day. Note that this means a calendar day, not a working day. Therefore, typically you will deduct 1/365th of the annual salary for every strike day. If the contract specifies normal working hours and pay is calculated by the hour, then the deduction will be determined by reference to the hours lost.
Can employees who are not members of the union go on strike?
Yes. Protection from dismissal extends to them. Other staff can participate in any strike action but would also lose a day's pay for each day of strike action.
Can we ask staff about their intentions for the proposed strike action?
You are not entitled to subject those teachers who intend to strike to a detriment, but this does not preclude you from communicating with the relevant teaching staff as to their intentions. We would advise that this exercise is carried out in the spirit of the school making enquiries to make plans to deal with absence and where necessary communicate with parents about the implications of the proposed strike action. There are clear health, safety and safeguarding issues involved in the decision to open if there is an inadequate ratio of teachers.
You may also need to clarify the extent to which members of staff are affected by the proposed strike action at schools attended by their children, i.e. possibly leaving your employees with child care issues. If employees are not able to attend work for their own child care reasons, you will need to apply a consistent approach, for example treating the absence as domestic incident leave. Arguably this situation may not constitute domestic incident leave due to the amount of time staff have had to make alternative arrangements. This may be a harsh line to take in the circumstances but you should consider your position in advance so you have a clear plan.
Can we arrange for existing staff who choose not to strike, to cover for those that do opt to strike?
Yes. Leaving aside the fact that replacing workers may serve to inflame the existing dispute, there is no legal restriction on employers reallocating the duties of their own directly employed staff.
Can we use agency staff to cover?
No. Any agency supplying staff to cover the normal duties carried out by a striking employee or to cover for an employee who is moved to cover striking staff is committing a criminal offence. This also applies to any agency which supplies staff to be directly employed by the school.
Does that mean that I cannot ask agency staff who I already employ to come in on that day?
No. If you are already using agency staff they can come in and do the normal duties that they were already engaged to undertake.
Can I employ more people directly?
Yes, but they cannot be through an agency.
What if teachers call in sick but I believe that they are on strike?
If you have credible evidence or can obtain credible evidence then normal disciplinary proceedings can be commenced. If you fail to pay sick pay on the basis of an erroneous belief then you are in danger of a constructive dismissal claim and/or an unlawful deduction of wages claim.
If any teacher calls in sick then you can, of course, replace that teacher with an agency worker as they are sick and not striking. Make sure you keep a careful record.
What is the legal position vis a vis the school and the parents in the event of the school having to close in the face of industrial action?
If you close when you should be open then you are, potentially, in breach of contract.
If you have a force majeure clause which states that on the occurrence of an event which is beyond the reasonable control of the school (which should include the occurrence of industrial action), the school will not be held to be in breach of contract and will not be required by law to make a repayment to parents as a result of the forced closure of the school. You could also argue that was an implied term if any claims are threatened. However, most schools have great relationships with parents and communication with parents is paramount to maintaining good will. The primary issue for most parents is replacement childcare so whilst it may not be possible to deliver the normal curriculum on the day, to stay open and care for the children for the day may be key.
If you think that you might need to close further advice will be required.
Our final piece of advice is that all industrial disputes have to end. They all have to be solved in some way or another. Experience has shown us that the best results for employers are normally achieved by firm but fair management which is careful not to increase the temperature of any dispute. This is particularly so in this case where the changes which have provoked the strike action are out of your control.