Minimum service level proposals: Everything schools need to know

The government is consulting on proposals for new minimum service level (MSL) laws in schools when staff are on strike.

Education secretary Gillian Keegan said the new legislation would “help us protect children and young people’s education whilst balancing an individual’s right to strike”.

Ministers would set the expected MSL, and then it would be left up to schools to work out the required staff needed to meet the requirement.

Employers would be able to issue “work notices” to ensure they can deliver the MSL, with unions then obliged to take “reasonable steps to ensure compliance”.

The law would give a power to employers, rather than act as a duty they must meet. So it is not clear if use of the powers would be enforced by government. The Department for Education has been approached for comment.

The consultation was launched after ministers pulled out of talks to agree a “voluntary” plan with unions, who say the laws are a “fundamental attack on the democratic freedoms and rights of school staff”.

The Joint Committee on Human Rights (JCHR) too has “serious concerns” the anti-strike legislation breaks international law and is “failing to meet human rights obligations”.

A nine-week consultation on the plans, which will run through the Christmas holidays, closes on January 30. If approved by both Houses of Parliament, the new law would come into effect next September.

Here’s your trusty Schools Week round-up:

1. Two options considered

The consultation document sets out two options for minimum service levels.

Proposal one would involve prioritising attendance for “specific groups of children and young people” in keeping with the DfE’s strike guidance.

These would include vulnerable children and young people, such as looked-after children or those with SEND, pupils due to take public exams and formal assessments and the children of critical workers.

Proposal 2 would involve the same approach as proposal 1 for secondary pupils, but would include *all* primary pupils. As previously reported, this would amount to three in four pupils expected to be in school during strikes.

2. Left up to heads to decide on ‘appropriate staffing levels’ …

The consultation states: “Headteachers and principals are best placed to understand the needs of their staff, children and young people.

“We believe that they should have the flexibility to determine the appropriate staffing levels which are reasonably necessary to deliver an MSL in their setting.”

This means that while the MSL will be set by ministers, it will actually be down to employers to decide “which and how many workers are identified in a work notice to deliver the MSL, rather than government setting specific ratios or percentages”.

3. … and left up to schools to issue ‘work notices’

The consultation states that if enacted, the decision to issue a “work notice” to ensure minimum service levels would lie with the employer – in this case schools, academy trusts and local authorities.

“It will be at the discretion of individual employers whether or not to issue work notices to deliver the MSL. This legislation is intended to provide new tools to reduce any disproportionate impacts during strikes, not to prevent unions or individuals from taking industrial action.”

Work notices must specify the people required to work and the work they must carry out to deliver the minimum service level. They must be issued a “minimum of seven days prior to the strike day but can be varied by the employer up to four days before (unless a later time is agreed with the union)”.

The legislation that allows for minimum service levels, which passed earlier this year, includes an “obligation for unions to take reasonable steps to ensure compliance with work notices”.

It is not clear what would happen if a school just chooses not to issue work notices. DfE has been asked for clarification.

4. Which schools and workers would this affect?

The DfE it wanted to see academies, maintained schools, 16 to 19 academies, FE settings and sixth form colleges in scope. Other institutions, such as private schools, would not be included.

The government “expects” those named in a work notice “could” include headteachers, principals, teachers, SENCOs, teaching assistants, teaching and learning support staff, designated safeguarding leads, administration staff and other non-teachers such as caretakers, technicians, cleaners and kitchen staff.

5. Which exam years are affected?

For the prioritisation of pupils sitting exams or national assessments, the DfE has said that the following pupils and students would be in scope.

• Year 6 pupils undertaking end of KS2 national curriculum assessments; and
• Pupils participating in statutory KS2 trials, such as the anchor trial
• Students taking GCSEs, AS and A levels and Vocational and Technical Qualifications (VTQs), including T Levels, and other national qualifications
• Year 11 students participating in the National Reference Test.

But the DfE does not appear to have reached a decision on when exactly exam year groups would be prioritised. The consultation document asked respondents if they should prioritise those with assessments within a month of a strike, or within the same academic year.

The DfE said it proposed redefining its list of critical workers to those specified in the legislation that passed earlier this year.

That covers…

• Those in health services, fire and rescue services, education services, transport services, border security and the decommissioning of nuclear installations; and
• Those unable to strike, such as police officers, members of the armed forces and prison officers.

However, minimum service levels “would only apply to pupils and students where both parents, carers or guardians are critical workers, or for critical workers in a single parent household”.

The DfE also proposed that MSL for critical workers would “only apply where children are not old enough to look after themselves”. There is no legal threshold for this, but the DfE said children “up to and including year 7 should be in scope”.

7. Rotas for longer strikes

The DfE said it believed that under both proposals, rotas “should be used by schools and colleges for strike action lasting five consecutive school days or more”.

This would “help make sure that for extended periods of strike action all children receive some face-to-face education”.

“The objective of rotas would be that no child has a sustained period out of school in the event of extended periods of strike action. The use of rotas would be in addition to provision for the priority cohorts in proposal 1, and all those covered by proposal 2.”

8. DfE ‘expects’ other pupils to get remote education

For pupils not prioritised for attendance on a strike day under either proposal, the DfE said it would “expect every effort to be made by schools to put in place appropriate arrangements for remote education”.

“This aligns with DfE’s non-statutory guidance handling strike action in schools, which stipulates that, where possible, schools should provide remote education in line with the DfE’s providing remote education: guidance for schools.”