Schools will not be subject to new “minimum safety level” staffing requirements during strikes but could face them in the future under plans for new legislation set out by the government.
However, Schools Week has learned that the Department for Education is currently re-drafting non-statutory guidance on how schools should handle strikes ahead of walkouts that could happen as early as the end of the month.
Ministers will introduce a bill in the “coming weeks” that will give them the power to “ensure that vital public services will have to maintain a basic function and deliver minimum safety levels during industrial action”.
The government plans to consult on and set “minimum safety levels” for fire, ambulance and rail services.
Confusion over ‘voluntary agreement’ clause
But ministers say they expect to reach “voluntary agreements” with other sectors including education – though they are yet to provide details on what this means in practice.
The government has said it will reserve the right to create minimum requirements for school strikes in the future if voluntary agreements do not come to pass, prompting accusations of “anti-union sabre-rattling”.
Schools Week was told that this does not mean employers or unions coming up with their own minimum safety levels, but no further official details have been released.
Unions would be “bound to follow this legislation”, with those that fail risking injunctions from employers to prevent strikes, or employers “seeking damages afterwards if they do not comply with their obligations”.
Media coverage based on private briefings by the government has also suggested that workers could be sacked for going on strike in violation of the new law, but there is no mention of such a penalty in the government’s announcement.
Heads and trust leaders this week questioned the rationale behind the proposals, and how a “minimum safety level” for education could even be calculated.
Plans are ‘nonsensical’, say heads
Jon Chaloner, CEO of GLF Schools, said: “By the time a focus group has been appointed, convened and worked on the content of a ‘minimum service level’ and published it, I would hope that the threat of strike action will have receded.”
David Boyle, chief executive of the Dunraven Educational Trust, asked: “Can we expect ‘minimum service levels’ from the government too? Perhaps starting with a commitment to create and sustain a well-respected and properly funded public service?”
Andrew O’Neill, headteacher at All Saints Catholic College in west London, said he “would be surprised to see a situation where headteachers threaten to sack staff who are on strike given the current climate and the fact that both schools and school teachers’ pay has not been a real priority for the last 10 years.”
Sammy Wright, vice principal at Southmoore Academy in Sunderland and a former social mobility commissioner, said schools “cannot afford to have a loss of staff”.
He added: “It’s nonsensical. I cannot see how the minimum level of service would work. If you mean something where all kids are in school, then you need to have full staffing.”
Ballots for strike action by the National Education Union, NASUWT teaching union and NAHT school leaders’ union all close next week, with the end of January set as a provisional start date for the NEU’s action.
New strike guidance for school leaders
Guidance for schools on strike action has not been updated since 2016, and as a result there are some glaring omissions. For example, the law changed last year allowing employers to use agency workers to replace striking staff, but the guidance still states that this is illegal.
The current guidance does offer a useful idea of how the government currently wants leaders to respond to strikes, however. It states that the DfE expects heads to take “reasonable steps” to keep schools open for “as many pupils as possible”.
It suggests pooling resources across schools, employing extra staff such as exam invigilators and organising “alternative activities”.
If heads themselves walk out, guidance states that those on strike should delegate their duties to another leader.
If a whole leadership team walks out, governors or academy trusts can ask another staff member – “for example a senior teacher or a retired headteacher employed by the school” – to carry out the head’s duties.
The guidance also does not currently take account of recent developments, such as the Oak National Academy and other online resources, or the Covid-era approach of restricting attendance to vulnerable pupils and the children of keyworkers.
It is understood that new guidance for school leaders will be published shortly.
Trusts consider Covid-style protocols for vulnerable
Academy trusts are already drawing up their own contingency plans, some based on pandemic approaches.
Paul Smith, CEO of The White Horse Federation, said that, while his trust “absolutely respects the right of teachers and leaders to strike”, it must “balance this with our responsibilities to our whole school community, especially to those who are most vulnerable.
“For this reason, we are looking at introducing Covid-like arrangements so that the most vulnerable students have a safe and warm place they can come to during any industrial action.”
Cathie Paine, CEO of REAch2 Academy Trust, said the chain had “already incorporated remote teaching as part of our core offer for children who, for whatever reason, are unable to come into school as this helps ensure continuity with their learning.
“However, there are challenges with this for our youngest children, and we acknowledge that any remote solution would depend on support from pupils’ families.”
Agencies say they won’t provide strike cover
Despite last year’s law change on the use of agency workers the potential for strike action in the coming weeks does not yet seem to have resulted in an uptick in enquiries to supply agencies. Niall Bradley, chair of the National Supply Teachers Network, said his members had not reported enquiries relating to strike action.
“There were a number of comments about people never crossing picket lines, which just echoes the poll we did last summer when 95 per cent of respondents said they wouldn’t cover during a strike day.”
Marios Georgiou, chair of Step Teachers, said demand was “still high but it could simply be a continuation of the large amount of flu/sickness that we have experienced.
“Irrespective of the path taken by the government, as a former teacher and an advocate for better pay and conditions for teachers and school support staff, I would not be prepared to underline these efforts. Similarly, I would also expect our agency staff to show solidarity with their colleagues.”
Gavin Beart, divisional managing director for education at Reed, said his organisation would “not provide a direct replacement for someone on official strike action”.
Minister: ‘We must also protect livelihoods’
The High Court recently granted permission for a legal challenge from unions including NASUWT and the NEU against last year’s law change to allow agency staff to break strikes.
Labour leader Sir Keir Starmer has already said he would repeal the new minimum safety level proposals if he wins the next election.
The Trades Union Congress said the move was “wrong, unworkable and almost certainly illegal”.
NAHT general secretary Paul Whiteman, said the proposals “seem misconceived and destined for failure”.
ASCL general secretary Geoff Barton said the “threat of imposing minimum service agreements is just anti-union sabre-rattling and hardly conducive to cordial industrial relations”. But business secretary Grant Shapps said that as well as protecting the freedom to strike, the government “must also protect life and livelihoods”.
Ministers have also said that they want to discuss pay evidence, workload and conditions in the public sector with unions ahead of evidence being submitted to the independent pay review bodies.
The government claims these conversations will help to ensure evidence is “as considered and informed as possible, including reflecting areas of common ground”.
But they also said that inflation-matching pay rises would make “the fight against inflation more challenging” and risk increasing people’s mortgages.
Your thoughts