Industrial action: FAQs

Get answers to your questions about strike action. Find out about your rights and responsibilities, and how to respond to industrial action.

updated on 25 January 2023
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School types: All · School phases: All
Ref: 45513
Contents
  1. What's the current state of play?
  2. How to respond to strike action
  3. Cover and teaching arrangements
  4. Rights and pay for striking workers
  5. Practical considerations for strike days

These FAQs are based on:

See the sources section at the bottom of this page for the other guidance, advice and legislation that these FAQs draw from.

Please note that unions may have differing interpretations of your legal requirements than the DfE. We recommend that you seek legal advice and consult with any union reps in your school as appropriate.

What's the current state of play?

The National Education Union (NEU) has voted to carry out strikes in school.

There are 7 planned strike days throughout February and March, with strike action beginning on 1 February 2023. See the full list of projected strike days. These strikes are regional, so your school may be affected by up to 4 of them. 

The NAHT and NASUWT held strike ballots, and failed to meet the legal threshold for strike action. Both unions have said that they may re-ballot their members in the coming months.

Ofsted will schedule school inspection notifications and on-site inspections to avoid strike days. Its usual deferral policy is also in place. See 'Can we be inspected by Ofsted during a strike?' for more detail. 

Who can go on strike?

If a strike is called lawfully by a union, members of that union can take industrial action. 

Even though this is a breach of contract, you can’t dismiss these staff members, and should instead deduct their pay for days they didn't work.

If a staff member isn’t part of a union, they are also protected from dismissal under the same rights as union members. This means that, in the same way as union members, they can breach their contract and strike without dismissal.

Who can't?

Staff who are represented by a union that is not striking cannot participate in strikes.

This also includes staff represented by a union which has voted for a strike for 1 group of workers, but not others. For example, support staff in England who are NEU members cannot strike, because their ballot did not pass requirements for a legal strike.

Can staff in independent schools go on strike?

If your school has officially "recognised" the striking union, then your staff can be involved in the upcoming strike action. Recognition can be voluntary or forced. Take a look at the NEU's guidance on trade union recognition in independent schools.

Your staff are subject to the same eligibility and protection rules set out above under 'who can go on strike?'.

How to respond to strike action

Who do we need to tell about strikes?

If you receive notice of industrial action, contact your local authority, and your academy trust and/or diocesan representative as appropriate. You will need to consult with them about next moves.

Notify your staff about upcoming strike action, and that participation will result in loss of pay. If you have a good idea of the number of staff who will be available, let them know cover arrangements in advance.

Inform parents as soon as possible about strike action, and what steps you will take to manage it.

Take a look at our guidance on communicating with parents, staff and stakeholders about strikes – it includes template letters to send to parents about strikes in your school. 

Who can decide to close the school?

For maintained schools: the headteacher

For academies: the academy trust, but this is usually delegated to the headteacher

Headteachers should consult the following when deciding whether to close the school or not:

  • Governors
  • Parents
  • The local authority
  • The academy trust
  • A diocesan representative (where appropriate)

(See page 5 of the DfE's guidance on strikes).

Your school can be open, closed, or partially open during strikes depending on your capacity to teach safely and effectively.

The DfE expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.

Do staff have to tell our school if they're going on strike?

No, staff members aren't required to tell their employers whether or not they intend to strike.

However, you can ask your staff members in advance whether they plan to strike, to help you plan ahead (see page 5 of the DfE's guidance).

Forbes solicitors recommend that you don’t ask staff via a 1-on-1 conversation, as your staff may feel pressured to give you an answer.

You should also consider making the request in writing (e.g. an email) so you have evidence of the request if there is a later dispute or issue around you demanding the information from your staff.

Unions should tell you how many members are employed at your school, but this won’t include names. Be aware that non-union workers may also strike.

If a staff member is absent on a strike day and you don’t know for certain that they are striking, conduct a wellbeing call to find out why they are absent in the usual way.

How much notice of a strike will we get?

A union must notify employers no later than 7 days before a strike ballot is held. 

Unions must then also give 14 days' notice of the beginning of a strike

For maintained schools, your employer is your LA, so expect to be notified by them instead of unions themselves.

Notice of a strike ballot must:

  • Be in writing
  • State that the union intends to hold a ballot
  • Specify the anticipated voting day 
  • Supply the numbers of staff who will be balloted in each workplace

Use this notice period to make preparations and decide if you're able to keep your school open or partially open.

Who do we need to notify about closing the school?

If you're closing, partially closing, or moving your school online due to strikes, contact your LA as soon as you have made a decision. It will update its website with this information, and may have arrangements in place to inform services like school bus providers. 

It’s your responsibility to notify parents. You should do this as soon as possible, so that they have time to make arrangements.

See our guidance on emergency school closures for more information. Strikes aren't specifically covered in the DfE's guidance for emergency planning and response, but the section on staff shortages in our article can give you pointers for best practice. 

Do we need an industrial action policy?

No, you aren't required to have a policy for industrial action. 

However, you should use the notice period before a strike to draw up contingency plans to minimise its impact. Make sure that all your staff can access these in advance, so they know what to expect and what action your school will take. 

Your local authority or trust may have a policy or procedure which you can use.

Do we need a risk assessment to keep the school open during strikes?

You should undertake a risk assessment to decide whether or not you can keep the school open and conduct lessons as normal.

While there's no specific legal requirement for a risk assessment for industrial action, you need to make sure that you aren't risking the health and safety of pupils or staff. 

The Health and Safety at Work etc Act 1974 requires the employer in a school to take "reasonable steps" to do this, and a risk assessment is the easiest way to make sure you're looking out for everyone’s safety. 

Consider:

  • The number of staff present
  • Safe evacuation in case of emergency
  • How many first-aiders and fire marshals will be present 
  • Whether you can effectively safeguard pupils
  • Safe food preparation
  • Any alternative activities you will be putting on instead of lessons
  • Undue stress for staff members who have to take on a greater workload than normal

We have a template risk assessment to help you decide whether you can safely open during strikes.

Which pupils should we prioritise to be in school?

Whilst continued attendance is important for all pupils, low staffing numbers may mean that you need to temporarily prioritise places.

The DfE recommends, where possible, that you should prioritise:

  • Vulnerable children and young people
  • Children of critical ('key') workers
  • Pupils due to take public exams and other formal assessments

What are the minimum staffing ratio requirements to stay open?

For 2 year old children, there must be at least 1 member of staff for every 4 children. At least 1 staff member must have a level 3 qualification and at least half of the others must have a level 2 qualification. 

For nursery provision in maintained schools, there must be at least 1 member of staff for every 13 children. At least 1 member of staff must be a school teacher and at least 1 other staff member must have a level 3 qualification. 

For reception, there must be at least 1 school teacher for every 30 children. However, this doesn’t apply to activities normally carried out in larger groups – for example, sports and other activities you may choose to provide on strike days. 

This is set out in the Statutory Framework for Early Years Foundation Stage, and pages 6 and 7 of the DfE's strike guidance.

There are no legal requirements for older pupils, as long as you can ensure their health and safety and your safeguarding duty. Take into account any pupils with SEND who might require additional support or supervision.

Take a look at our guidance on the arrangements for staying open during strikes.

What happens if our headteacher is striking?

Like any other staff member, headteachers can strike if they're part of a union that has balloted in favour of strike action.

A headteacher on strike should delegate their duties to another member of the SLT. If possible, delegate to a deputy head who already has experience in temporarily taking on the role of headteacher (see page 6 of the DfE's strike guidance).

If the whole leadership team is on strike, the governing body or academy trust can ask another staff member to carry out the headteacher’s duties, such as a senior teacher or a retired headteacher employed by the school.

Cover and teaching arrangements

Do we need to deliver the curriculum on strike days?

No, there's no legal requirement to teach the curriculum on strike days (see page 8 of the DfE's guidance). This is whether your school is open, closed or partially open.

You should try and limit the disruption to learning as much as possible. However, if you cannot teach normally, you can put on alternative activities, provided you can meet health and safety requirements.

Can we ask other staff to cover lessons?

Teaching staff

You may ask other teaching staff to cover the classes of staff who are striking. However, if a teacher is employed under the STPCD, they can't be made to provide cover for other teachers during industrial action (DfE guidance, page 5). 

Please be aware that asking teaching staff to cover classes may lead to conflict with other unions, so talk to the union reps in your school as appropriate.

Support staff

You may use support staff to provide cover supervision or oversee alternative activities. You can also use them to carry out 'specified' teaching work.

Take a look at page 6 of the DfE's strike guidance and our article on the requirements for unqualified teachers for more support.

The Local Government Employers website advises that you should be careful what work you reallocate, because this might endanger goodwill with your staff who aren't involved in strike action.

Can we employ temporary staff to cover strikes?

Be aware of the potential for conflict with unions and your existing staff if you employ temporary staff to cover strikes.

Agency staff

You can hire agency workers, such as supply teachers, to plug gaps caused by strike action. 

This is possible because of a new law passed in July 2022. However, several trade unions, including education unions, are currently launching a legal challenge against this law. Be aware that bringing in agency staff may impact your relations with trade unions and staff members who are taking industrial action.

We will update this article if the situation changes.

Directly employing individuals

An employer can directly employ individuals to cover striking staff. The DfE recommends that you issue a fixed-term contract setting out the length of their employment period (see page 7 of the strike guidance).

These cover workers are subject to the same pay and working conditions as the rest of your staff, and must be subject to the usual safer recruitment checks.

Can we combine classes?

You can combine classes and groups for teaching as long as you're ensuring pupils' health and safety.

Make sure you have sufficient numbers of suitable qualified staff for nursery and infant classes. Infant class size legislation limits the size to 30 pupils per teacher – however, this size limit doesn't apply to structured or unstructured activities that the school may choose to provide on strike days. 

Please note that combining classes may lead to conflict with other unions, so talk to the union reps in your school as appropriate.

Can we use volunteers to supervise pupils?

You can:

  • Use existing school volunteers (who have the relevant DBS checks) to provide supervision
  • Identify new volunteers to support your existing school volunteers - they would need to be supervised by staff or volunteers with relevant DBS checks

Remind yourself of the DBS checks you need for volunteers in school. 

Can we ask striking teachers to set work in advance?

Striking teachers cannot be compelled to set work for teachers on the day of the strike. However, if classes are running as normal, you can ask teachers to consider setting work, and some may choose to do so.

Rights and pay for striking workers

Can we ask striking teachers to make up lesson time?

There's no requirement for teachers who went on strike to make up the time or teach extra catch-up sessions.

It's up to your school to decide how best to make up for any disruption to education.  

Do we have to rearrange missed PPA time?

There are no specific guidance or requirements on what to do if a teacher misses their planning, preparation and assessment (PPA) time due to strikes. It's up to you to decide how to approach this, including deciding whether or not to reschedule or reimburse the time.

We recommend that you check your current policy or procedure for PPA time, and stay consistent with it. For example, if you would currently rearrange PPA time that's missed when a staff member is ill, take the same approach here.

Take a look at our article about the rules for PPA time for more details.

Do striking workers get pay?

You don't have to pay employees who are on strike.

You should only deduct the amount of pay that the staff member would have earned during the strike.

Make sure that you inform your staff of this in advance.

How do we deduct pay?

You should only deduct the amount of pay that the employee would have earned during the strike. 

Teachers employed under the Conditions of Service for School Teachers in England and Wales - ‘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. 

Check your staff’s contract to see which conditions they’re employed under, and if there are any requirements for calculating deductions. 

If staff members weren’t due to be working on the day that they're striking, you cannot deduct from their pay.

Does striking impact continous service or the length of service?

Striking doesn’t constitute a break in service. When a staff member returns following strike action, they continue to be employed under the same continuous contract. Striking doesn’t stop a staff member from being subject to the conditions of their employment or eligible for benefits based on continuous service – for example, the right to apply for flexible working after 26 weeks of service.

Strike days don’t count towards a staff member’s total length of service. This may impact pensions statutory redundancy pay, and statutory parental pay.

Practical considerations for strike days

How should we handle school lunches?

If you’re unable to provide a normal lunch service, you aren’t required to close the school. 

However, you're required to provide free school meals for pupils who are eligible. If you anticipate not having enough staff available to prepare and serve these meals as usual, put alternative arrangements in place.

You could:

  • Arrange temporary cover to prepare meals on-site
  • Prepare packed lunches in the place of hot meals
  • Arrange for meals to be delivered in 

All staff involved in preparing meals must have the required food safety qualifications. 

Can we be inspected by Ofsted during a strike?

Ofsted has announced that it will schedule school inspection notifications and on-site inspection to avoid strike days.

This means that:

  • Schools will be notified of their inspection on 31 January instead of 1 February
  • On-site inspection will then take place on 2 and 3 February

Ofsted will also continue to use its usual inspection deferral policy. It will consider any deferral requests that a school makes because of strike action on a case-by-case basis.

What if staff are sick on strike days?

You can’t demand proof that a staff member is genuinely sick, such as a fit note.

Forbes Solicitors recommend that you hold a return to work meeting with any staff member who is absent on a strike day for any other reason than striking. This will let you talk to them about why they were away.

Make sure that you tell your staff in advance, so that they know this will be expected if they’re absent on a strike day, and make sure that you regularly hold return to work meetings after absence.

If you don’t, and you only do it after strike days, this may be seen as detrimental treatment for participating in a strike.

If your staff are unexpectedly absent on strike days, you may be able to require your teachers (who are working) to cover their lessons, because their absence was 'unforeseeable' – see paragraph 52.7 of the STPCD.

Can we rearrange school events and parents' evenings?

You can rearrange school events that fall on strike days however suits your school and your community best.

Remember that parents may be frustrated with the situation or have difficulty in rearranging new dates for events. Try to be understanding, and communicate these changes as soon as you know so that parents have time to make plans.

You can use our template letters to parents to explain your plans and any rearrangements because of strikes.

Maintained schools (and academies who have the same requirements for reporting to parents in your funding agreements) must offer at least 1 opportunity a year for parents to discuss their child's progress with teachers. As long as you meet this requirement, you can rearrange or even cancel your parents' evening as best suits your school.

If you're rearranging it, consider holding a virtual parents' evening. This will reduce the pressure for parents to find childcare and transport on the rearranged date.

How do we record pupil attendance?

If your school has to close for all or some pupils on a strike day, use attendance code Y for pupils who are told not to attend. This doesn’t count towards your school’s, or the pupil’s, absence record (see page 10 of the DfE's strike guidance).

Pupils who are required to come to school should be marked as usual.

Is picketing allowed?

Striking workers and union representatives may peacefully picket near the school on strike days. Unions must organise a picket supervisor who can liaise with your school as needed, and they must tell you who this is. Picketers may not:

  • Break any laws – for example, by behaving threateningly, damaging property or obstructing roads 
  • Include non-striking staff members, such as those who aren't members of a striking union. They also can’t be joined by people who aren't employed at your school

Schools shouldn't authorise absence for pupils to participate in pickets. 

Picketers may try to persuade non-striking workers to join the strike and not cross the picket line. Remind everyone that members of non-striking unions cannot legally join the strike (see ‘who can go on strike?' for more details).

Forbes Solicitors recommend that a member of your school/trust staff are present to make sure that the picket is being conducted lawfully, and to answer any questions your staff might have.

See pages 17 and 18 of the DfE's guidance, and the Code of Practice on Picketing published by the Department for Business, Energy and Industrial Strategy.

What does this mean for insurance?

If you have purchased 'teacher absence' insurance, make sure you check with your insurer whether strikes will impact your policy.

Sources

The information in this article is based on:

Article updates

24 January 2023

We've updated this article to include Ofsted's scheduling of notifications and inspections during strike action.

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