The legal position
Additional advice for members in England on new DfE guidance
Advice to ALL members across the UK
Advice for headteachers/principals and other senior leaders

 

The legal position

It is unlawful for any member of the NASUWT to take industrial action where the NASUWT has not given a specific notice to the employer advising that action will be taken.

The law states that a strike or other industrial action will be unofficial in relation to an employee unless they are:

• a member of a trade union and the action is authorised or endorsed by that union; or

• not a member of a trade union.

Members of a union that has not authorised or endorsed industrial action but who choose to strike would be taking unofficial strike action, which could result in the employer taking disciplinary action against them.

Guidance published from the DfE in this regard only relates to ‘non-union’ members.

Advice to ALL members across the UK

Is it appropriate for unions that are taking industrial action to recruit members of the NASUWT to join them?

A founding principle of trade unions is solidarity. Amongst other things, that means not undermining sister unions by poaching members. Our movement is stronger where we work together in the interests of all of our members.

Union membership is an individual’s choice. It is therefore not appropriate for any trade union to deliberately and actively seek to poach members of other trade unions to bolster industrial action. This contravenes TUC principles which state:

“All affiliates of the TUC accept as a binding commitment to their continued affiliation to the TUC that they will not knowingly and actively seek to take into membership existing or ‘recent’ members of another union by making recruitment approaches, either directly or indirectly, without the agreement of that organisation.”

The NASUWT has not entered into any agreements permitting other unions to take into membership members of the NASUWT.

Membership of the TUC also commits unions to take steps to ensure that they are not poaching members of another unions, whether intentionally or otherwise. The TUC Code states:

“In all cases where present or past trade union membership is indicated, the union to which the application has been made will immediately inform the present or former union in writing, giving names, grades and location, so that it may discuss the matter with the individual(s) concerned.”

Can an employer ask NASUWT members if they will be in work during the period of any strike action?

The law does not permit employers to seek this information. Such enquiries could be tantamount to intimidation by the employer and would be unacceptable.

There is no requirement or obligation for employees to provide information to their school/college as to whether or not they will be taking industrial action. Indeed, the DfE guidance Handling strike action in schools. Guidance for school leaders, governing bodies and employers (January 2023) also confirms that ‘employees are not required to tell their employers whether they intend to take strike action’.

Employers will have been notified by any unions taking strike action of the number of members they have at any individual workplace. It is a matter for the employer to base any planning and risk assessments on the information that has been supplied to them.

There is no requirement or obligation for NASUWT members to advise their employer whether they will be in work or not ahead of the day of any strike action.

Members are strongly advised not to provide such information if they are requested to do so.

Can an employer ask for a list of NASUWT members?

No. Information on the names of NASUWT members is classed as private and sensitive information under the Data Protection Act and may not be provided without the express written consent of the person(s) named.

Closure of the school/college

Headteachers/principals will need to make a judgement about whether the school/college can remain fully open, partially open, i.e. some year groups/class sent home, or will close.

The NASUWT Workplace Representative will need to confirm that the headteacher/principal has undertaken a risk assessment based on the potential impact on the school/college of the absence of staff who will be involved in the strike action.

If the decision is made to close the school/college, the headteacher/principal will decide whether it is closed only to pupils. Staff not involved in strike action should report to work or remain at home if directed by the headteacher/principal to do so.

NASUWT members should follow the instruction of the headteacher/principal in this matter. However, the NASUWT does not believe it makes much sense for those not taking action to be instructed to attend if all pupils are remaining at home. If there is any risk to safety as a result of the instruction of the headteacher/principal, members should contact the NASUWT immediately.

If pupils are remaining at home and staff are being asked to report to work, in these circumstances the NASUWT would need to be satisfied that the work that members would be directed to undertake in school/college in the absence of pupils would not constitute any element of work which would normally be undertaken by a member of staff on strike and also that the work they are being directed to do is reasonable and commensurate with their contract. There should be no expectation placed on NASUWT members to set or mark work or to teach pupils who are at home due to the absence of members of other unions who are taking industrial action.

Contact should be made immediately with the NASUWT for advice if members have any concerns about the work being allocated to them in school. The same applies if any employer suggests that NASUWT members should work from home as this opens up questions about, for example, appropriate risk assessments, energy costs, IT equipment, etc.

NASUWT members should not suffer any salary deduction if the school closes.

Where a school/college remains partially open and certain classes/year groups are sent home, NASUWT members should not agree to timetable variations to accommodate classes or pupils who would normally have been taken by those taking action. The NASUWT would need to establish with the headteacher/principal that members who are working with their normal classes will be able to access all the necessary services to ensure the health, safety and welfare of themselves and the pupils.

What should I do if I need to stay at home because my child’s school is closed due to strike action by another union?

Notice of the closure of a child’s school may not be given to a member until the week of the strike.

You should look at the Leave of Absence Policy which will outline whether there is paid or unpaid leave for emergency care for dependants. Many schools give discretionary paid leave for one to five days. Parents are entitled to statutory unpaid leave for dependants. It would be wise to notify your line manager of your concerns ahead of the strike day.

Can members be required to report to their workplace if the school/college is closed to pupils during industrial action by other unions?

Yes.

Should NASUWT members cross another union’s picket line?

Where NASUWT members have not been instructed to take strike action, they are required to report for work.

Failure to do so may be regarded as unofficial industrial action and could result in individual employees facing disciplinary action by the employer.

Should I cover the work of members of other unions who are taking part in industrial action?

No.

Members should not be asked to cover the work of colleagues in other trade unions when they are taking part in industrial action.

NASUWT members should not agree to teaching classes or groups, supervising classes or groups, providing work for classes or groups, or undertaking any supervision of pupils that would normally be carried out by other colleagues who are taking part in industrial action authorised by their trade unions.

It is vitally important that as members of the NASUWT, we demonstrate solidarity with other colleagues who are taking part in official industrial action.

Any request by your employer to perform the duties of a colleague who is participating in official strike action is not acceptable and would not constitute a reasonable management instruction.

Can I refuse to cover for other colleagues who are taking part in industrial action?

Cover refers to taking a class or group assigned to another teacher who is absent for any reason.  Members must not cover the work of other employees who are taking part in official industrial action.

Any attempt by an employer to seek to undermine industrial action by asking NASUWT members to undertake the work of other colleagues would constitute strike breaking and would be unreasonable and unacceptable.

If you are verbally asked to cover the work of colleagues in other unions, ask for a signed written instruction and pass a copy immediately to your NASUWT Representative, Local Secretary, National Executive Member or to your National/Regional Centre.

For the avoidance of doubt, teachers employed at a school should not be required to provide cover for absence other than rarely and only in circumstances that are not foreseeable. Strike action is foreseeable, as employers will have received notice at least two weeks prior to strike action taking place.

Should I cover classes or other responsibilities for colleagues taking industrial action if I am offered additional pay or time off elsewhere?

No. Members must not cover the work or undermine the industrial action of colleagues who are taking part in official industrial action.

Can classes be combined and supervised during industrial action?

This would not be acceptable to the NASUWT as it would involve NASUWT members covering the work of other teachers who are taking industrial action.

If I refuse a written instruction to undertake the work of other colleagues who are taking industrial action, what are the possible consequences?

The NASUWT will not accept unacceptable or bullying employer behaviour. Members should contact the Union for support where there are concerns.

Where necessary, the NASUWT will declare a dispute with individual employers and ballot members for industrial action to protect members from threats, bullying or other intimidation by their employer.

The NASUWT will take a robust stance against any employer, legally and industrially, where an employer chooses to take punitive action against members who refuse to cover the work of other colleagues who are taking part in industrial action.

Can my employer refuse to accept partial performance?

The term ‘partial performance’ refers to circumstances where an employee does not fulfil the duties and requirements as set out in their contracts of employment. It is important that members look carefully at their contracts of employment to understand the duties and requirements that may apply to them.

If an employer refuses to accept ‘partial performance’, they are required to notify any affected employees in advance in writing that they have the right not to attend work (and not get paid).

Where an employer refuses partial performance and sends employees home, members may not be required to undertake any work for the employer during that time.

My employer has stated that it will accept ‘partial performance’ and will deduct a proportion of my daily salary for tasks that I refuse to undertake. Is that acceptable?

Such deductions may be unlawful. Members should report immediately to the NASUWT where this arises. The Union would look to challenge such action legally and also consider balloting members at the school/college for industrial action.

My school is expecting teachers who are not taking industrial action to provide remote education from my home if the school is closed to pupils. Is that acceptable?

There is no requirement for schools to provide remote education.

Members should not agree to undertake online teaching to pupils from home.

As a headteacher or Senior Management Team (SMT) member, should I be carrying out activities to mitigate the effect of strike action by another union?

The NASUWT does not accept that it is the role of headteachers or SMT members to undermine industrial action by other unions.

The responsibility of school and college leaders is to ensure that the school/college can open safely for any pupils and staff who may be on site. This will require that a risk assessment be undertaken in anticipation of strike action by other unions. Where safety concerns cannot be addressed, such mitigation as necessary should be considered, including determining whether it is safe for the school to open during the period of industrial action.

During periods of industrial action by other unions, NASUWT leadership members should continue to undertake their normal duties and responsibilities for running the school/college, including:

• ensuring arrangements are in place for the safe physical opening of the building;

• ensuring there are adequate arrangements in place to ensure the safety and security of the building, employees and pupils attending the site during and at the end of the day.

Can supply teachers replace staff taking strike action?

The engagement of agency workers to replace staff who are taking strike action would constitute strike breaking. The NASUWT is opposed to any such action by an employer.

The NASUWT is taking legal action against the Government’s decision to repeal Regulation 7, which previously prevented this practice.

Can an employer require members to attend the workplace during a strike even if they are sick?

No. The normal arrangements for notifying the employer of sickness absence continue to apply. Where an employee is unwell, they should report to their employer that they are unwell and will not be attending work. Employees are entitled to self-certify for the first seven days of sickness absence, following which a fit note will be required.

Staff employed to provide cleaning, catering or other premises services

In the event of strike action by members of premises, cleaning or catering staff, the headteacher/principal must undertake a risk assessment, in consultation with all staff and trade union representatives, to ensure the health and safety of staff and pupils on site at all times during any period of industrial action.

In the event that health and safety is compromised, including requirements for regular cleaning and for maintaining Covid safety, the NASUWT will expect that facilities should be closed to pupils and staff.

There should be no expectation placed on members of the NASUWT to undertake the work of premises staff, cleaners or catering staff.

If a member is instructed to do so by the headteacher/principal, they should protest, ask the headteacher/principal to put the instruction in writing and notify the NASUWT immediately.

Advice for NASUWT headteachers/principals and other senior leaders

NASUWT headteacher/principal members should have received notice either directly to the school or via the employing authority giving notice of the strike action. The notice should contain the number of teachers the union taking the strike has called upon to take strike action.

The NASUWT headteacher/principal may wish to confirm that figure with the Workplace Representative of the relevant union but should not ask for the names of individual teachers who are taking strike action.

A risk assessment should then be conducted to determine whether the school will be closed to all pupils or partially closed with some classes being excluded for the day. If the school is closed fully to all pupils, the headteacher/principal will need to determine whether the school will be open to all staff who are not engaged in the strike action.

Please see the advice above to members, which covers the factors that should be taken into consideration when arriving at a decision.

NASUWT headteacher/principal members should write to parents making clear the arrangements for the day of the strike.  It is important to avoid naming or identifying teachers who are on strike in any communication with parents as this could lead to a legal challenge under data protection provisions.

Where the school will be open or partially open to staff and/or pupils, NASUWT headteachers/principals should ascertain whether the union on strike is planning to mount a picket at the school. If a picket is to be mounted, the headteacher/principal should make clear that they expect staff/pupils entering the building to be treated professionally.

Deputy heads/vice-principals

If an NASUWT deputy/vice-principal is working in a school where the headteacher/principal is a member of the union taking strike action, they are advised to ask the headteacher/principal in advance of the strike what they are planning to do on the day of the strike.

If the headteacher/principal states in advance that s/he is intending to be on strike and asks an NASUWT deputy/vice-principal to run the school, the deputy should ask the headteacher/principal if s/he is instructing her/him to do so. If the answer is yes, the deputy/vice-principal may wish to raise with the headteacher/principal the appropriateness of this instruction but must ask for the instruction to be put in writing.

The deputy/vice-principal should ask for a copy of the risk assessment the headteacher/principal has undertaken for the strike. The deputy/vice-principal should contact the NASUWT for advice.

Absence of the headteacher/principal on strike action

If the school is scheduled to be wholly or partly open on the day of the strike and the headteacher/principal does not attend for work on that date, the deputy/vice-principal should carry out their normal responsibilities in deputising for the headteacher/principal. The deputy/vice-principal will, on that day, have to make their own decision about whether the school should stay open based upon their own risk assessment.

NB. The above advice would also apply in schools where there is no deputy/vice-principal or an assistant head who has a job description that requires them to deputise for the headteacher/principal.

Assistant headteachers

If an NASUWT assistant head works in a school where the headteacher/principal and deputy/vice-principal are members of the union taking strike action, they will need to ask the headteacher/principal in advance of the date of the strike what arrangements are being made for the day of the strike.

If there is an expectation by the headteacher/principal that the NASUWT assistant head will take responsibility for the school, the headteacher/principal should be advised that this is inappropriate and the NASUWT assistant head should contact the NASUWT for advice immediately.

 

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