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Questions from Education Q & A

1. Clearing up confusion around who can/ cannot strike

• Only teachers in England who are a member of the NEU and teachers who are not a member of a union can strike. If you have members of support staff who belong to the NEU, the ballot was not met entitling support staff to strike in England only in Wales. Therefore, support staff are not afforded the same legal protection as teachers who have been provided with the mandate for strike action.
• An important point to note is that unlawful picketing leads to complaints against the union and in which the union can face potential civil liabilities and individuals can face criminal charges should matters escalate into violence or for example obstructing public roads.
• If people don't wish to cross the picket line or object to doing parts of their job in order to stand with their colleagues, the action you can take will be dependent on their contracts of employment, the job role they undertake, and the duties they are undertaking.

2. What is the type of leave to be taken if a parent must take time off to care for their child as their teacher is off for strike action?

• This will be different for each employer.
• If they are not teachers, they may be able to take some annual leave. Whilst this may be unusual in a school setting during term time, their contracts may allow annual leave to be taken during that period. Speak with the employee to determine whether the individual wishes to take annual leave in order to look after their children and consider whether you would allow them to do so.
• If annual leave is not an option, the employee may wish to take emergency or dependents leave in order to provide childcare arrangements. It could be argued that the strike action itself would be regarded as an emergency, especially if childcare arrangements cannot be put in place. Typically, this would be taken as unpaid leave unless contracts state otherwise.
• Another option to consider is parental leave, providing that the employee has the requisite service of 1 year in order to be afforded this entitlement.

3. Can agency staff be used to cover for teachers who are on strike?

• The rules and legislation surrounding agency workers changed in July 2022, prior to this date the law prohibited agency staff being utilised in such a way. This allows agency staff to cover shortages in the wake of absences, which the strike action will create.
• There is slight ambiguity around this as the legislation had been in place for the past 20 years and has only changed recently. Additionally, the particular rule that has been removed is currently subject to judicial review. Despite this, even if the rule was to be overturned, we cannot foresee a circumstance whereby a school would be penalised for doing so as the current position is contained in legislation.
• From a practical perspective, some agencies are reluctant to cover striking workers due to both reputational and supply issues, therefore you may encounter some problems in doing so.
• Therefore, whilst you are entitled to do so, this may inflame matters although this will depend on your strategy and how you wish to proceed when faced with shortages due to the strike. Take care to support staff as best you can whilst managing your relationship with the unions.

4. Could we let support staff have time off in lieu to look after their children which they could pay back as part of their summer scheme?

• This is a good suggestion, although whether you can do so will depend on the terms outlined in their contract of employment.
• Of course, you can always speak with staff and gage whether they would be receptive to this. Should staff not be open to this, it becomes a tricky question as to whether you can compel them to do so and ensure to review their contracts of employment.
• If they would normally be asked to work around their summer schemes if may be something to explore and take a pragmatic view
• How can we know if someone is part of the NEU and how do we check?
• We are hearing that the numbers being provided by the unions are not matching with the numbers given in schools
• One way you can check is to look at the employee's pay slip and deduce who they are paying their union contributions to. Another option is to ask staff and see if they are open to disclose this information about whether they will participate in the strike, although they have no obligation to inform you

5. Can members of the NEU join a picket outside of another school?

• In terms of the picket guidelines, the legislation defines this as a physical presence and is supposed to be outside of your own workplace. Therefore, staff members should not be joining a picket elsewhere at another school for example

6. Can we explain picket lines and where they should be located?

• The picket should be conducted in a safe place and there are various rules on where the line should be and what lawful picketing looks like. There is a requirement to ensure compliance from a health and safety point of view. Furthermore, each picket line should have a union supervisor.
• Regarding the rule on picket supervisors, they are supposed to have a letter with them that legally confirms they can picket. This should be presented by the supervisor when asked in a prompt manner. This is a requirement in order to display that the picket has been sufficiently approved, and is suggested that someone from the school can go to the picket line and check
• In terms of the person observing the picket lines, it is perhaps best that someone senior within the school does so. This must be a nonstriking member and someone who can be independent. Ideally, the person can observe the duration of the picket to ensure that sufficient behaviour is adhered to and there is no unlawful picketing

7. Is there a requirement for striking staff to attend the picket line?

• No this is the individual's choice. Members are encouraged by unions to do so but cannot face disciplinary action if they wish not to

8. Regarding staff who are striking and pay, can schools ask other staff who are not striking to confirm in writing if they will be in work?

• You can asl staff if they are striking although they are under no obligation to disclose this. It is our view that seeking written confirmation may perhaps be going too far as the person may feel pressured to confirm or deny

9. When non-striking teachers arrive in school can they confirm in writing whether their pay is being affected?

• You will not require a signature; it is advised to take a register of attendance. Our advice is that if you start to do anything you would not normally do, it becomes questionable as to whether you should be doing so
• The default position would be if someone attends work, they would be paid as normal therefore you don't need to seek anything in writing. You will only need to take action regarding those who do strike, such as the necessary deductions in pay
• If someone phones in sick if they are not sick, therefore in a fraudulent manner, this is a serious disciplinary matter verging on gross misconduct depending on the circumstances

10. Can we say we are not going to recognise absence on Wednesday?

• No - you must check in with staff as you do normally, continue your normal practice. If staff have not informed you of their whereabouts, this is a wellbeing issue and should be handled accordingly in line with usual policy

11. The deputy head has told a support staff member that they should be supporting their colleagues in the strike. What should they do?

• The deputy head should not be telling them that they need to join a strike, as this is the individual's choice.
• If the employee wants to show their support, they can do so by not being unreasonable towards striking colleagues, as everyone has their own personal choice.
• The head may need to speak to deputy, as they are giving advice that is not lawful and may put staff member in a difficult position

12. Can HLTA's be compelled to cover the striking colleagues?

• What does their contract say as to what they can cover and the duties they are required to do? If it is within their normal job duty you can compel them to, otherwise you can only ask them to

13. Asking TAs to cover for teachers. Is this allowed?

• This can be complex question and will depend on the type of school, regarding certain rules around maintained schools and the requirement for a qualified person to teach
• Also, it depends on what the activity the TA may be undertaking will be, and they may be able to supervise
• The rules are slightly different from academies depending on the date they converted to an academy, as to whether they require a qualified staff member to take classes
• We recommend seeking bespoke advice on this topic

For more information contact Harry Hazelwood in our Education department via email or phone on 01772 220207. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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