Guidance on industrial action
Contents
Introduction
This guidance should be read in conjunction with the guidance from the Department for Education website about handling strike action in schools and should provide you with the information required to deal with this difficult situation and the decisions you may face.
However, if you require further information, please call HR Direct on 01392 385555 or email hrdirect@devon.gov.uk.
This guidance is for schools that may be affected by strike action. It is designed to assist governing bodies and head teachers in keeping schools open to maintain the continuity of educational provision and in dealing with the practical issues that can arise. It provides information for:
- governors and headteachers regarding how to manage staff in these situations and the continuity of education provision
- staff who are planning on taking strike action
- staff who are not taking strike action, including those with childcare responsibilities who may be affected by strike action in another school
In the event of a strike that may affect your school or your staff, it is advised that this guidance is communicated to all employees.
The guidance provided in this document has been produced for community and voluntary controlled schools where Devon County Council is the employer. Foundation and voluntary aided schools where the governing body is the employer may also decide to follow this guidance. Academies may also wish to use this guidance where relevant.
Headteacher and governor responsibilities
Although local authorities are the employers of staff in community and voluntary controlled schools, under the School Staffing (England) Regulations it is the responsibility of governing bodies, including head teachers, to take appropriate action in response to industrial action.
The decision for academies rests with the academy trust but is usually delegated to the headteacher or principal. Headteachers or principals should consult governors, parents and the Local Authority, academy trust or diocesan representative (where appropriate) before deciding whether to close.
When strike action is announced head teachers will need to consider the resources available to them on the day of the strike to keep the school open and maintain continuity of educational provision where possible. It will also be necessary to ensure that employees not taking part in the industrial action are instructed to report for work as usual on the day of the strike.
School closures
The Department for Education expects the governing bodies and headteacher to take all reasonable steps to keep the school open for as many pupils as possible in order to maintain the continuity of educational provision.
Headteachers should ensure that adequate arrangements are made for supervision which may result in normal ratios being exceeded. In this event, certain higher-risk activities may need to be limited (for example, contact sports without a qualified member of staff, or science class practicals reduced to demonstrations).
In most settings utilising the school hall for larger group activities and/or the deployment of teaching assistants can be considered.
Prioritising places
Continued attendance is important for all pupils. However, if the numbers of staff on strike mean you need to temporarily prioritise places in your setting you should, where possible, apply the principles set out in the emergency planning and response guidance by giving priority to vulnerable children and young people and children of critical workers.
In addition to prioritising vulnerable children and young people and children of critical workers, schools should consider prioritising pupils due to take public examinations and other formal assessments.
Recording pupils’ attendance
If a school has to restrict attendance by telling some pupils not to attend school on a strike day, the Y code should be used for pupils who are told not to attend. Pupils who are required to attend should be marked in the normal way.
If a pupil is required to attend school on a strike day but does not, then they must be recorded as absent. The Y code does not count towards the pupil or school’s absence record.
Closure decision and communication
Whilst it is hoped that disruption to normal school activity will be kept to a minimum there may be some situations where specific requirements, for example in respect of health and safety, dictate that serious consideration needs to be given to school closure.
Before making the decision to close, the head teacher, in conjunction with the governing body, should undertake a risk assessment and decide if there is significant risk of severe injury, ill health or inability to comply with relevant legislation.
If you require any further guidance or assistance in drawing up a suitable risk assessment please contact Devon Health and Safety Services who can provide a suitable risk assessment template. Call 01392 382027.
In the event that a decision to close the school is taken, it will be necessary to communicate this message as promptly as possible to all relevant parties including the local authority, parents, local radio stations and any support services.
Schools can notify the local authority’s Business Services Team online of their decision to close by completing the school closures form.
The login details to complete the online form are those which are included in your school’s Emergency Action Plan. If you are unable to input the closure using the website, you can telephone on 01392 383369.
Please ensure that you also notify the date the school will re-open.
Cover for absent colleagues
Where responsibilities are identified as needing cover, headteachers can consider reallocating work to employees not taking part in the action. However, unions not involved in the strike may advise their members not to undertake cover for colleagues participating in the strike action. Any request to cover work outside an employee’s contract of employment needs to be reasonable and may be declined.
Teachers cannot usually be compelled to provide cover for other teachers during industrial action, however, supervisors or teachers who are employed wholly or mainly to provide cover and are not taking industrial action themselves can be directed to provide cover during industrial action.
Engaging with supply agencies
Following the repeal of Regulation 7 in July 2022, it is now possible for employers to engage with agency staff to replace the work of those taking official strike action.
Directly employing individuals
An employer can directly employ individuals to cover those on strike. Schools or groups of schools may wish to consider building up a bank of cover supervisors.
Using volunteers
Schools may use existing members of the school volunteer workforce and identify other new volunteers who could support. Before considering this option they should refer to the guidance from the Department for Education website at Handling strike action in schools.
Remote education
Where schools must restrict attendance, they should consider, where possible, providing remote education in line with the Providing remote education: guidance for schools.
In the event that the school delivers remote education, and where pupils are eligible for benefits-related free school meals, schools should work with their school catering team or food provider to ensure that a good quality lunch parcel is made available. More information on free school meals.
Participation in the industrial action
While employees are not required to tell their employers whether they intend to take strike action, headteachers will need to establish in advance whether or not each employee proposes to participate in the industrial action; this will enable them to plan how to manage the strike.
Although no pressure should be placed on staff to respond, it is reasonable to ask each employee whether they intend to take strike action.
Use of school or County Council resources (or both)
The use of school or County Council resources (or both) and equipment (such as internal email systems, intranet and noticeboards) for organising and communicating about industrial action will not be permitted. Any such use will be treated as a matter of potential misconduct under the Disciplinary Policy.
General conduct
As under normal circumstances, any acts of violence, intimidation, harassment or damage to property during the course of the industrial action will be treated as potential misconduct under the Disciplinary Policy.
Deductions from salary
It is recommended that employees are notified that strike action is regarded as a breach of contract and that deductions from salary will be made where such action is taken.
For teachers employed within community and voluntary controlled schools who participate in the strike action, the Authority will deduct salary, in accordance with Burgundy Book conditions, at a daily or part-daily rate based on the daily salary being 1/365th of a year for each day of the period of absence.
Support staff deductions will be based on 1/260th of annual salary for full-time salaried employees. An equivalent formula will be applied for employees who work part-time and term-time only.
Deductions will be calculated based on the actual hours that would normally have been worked on the strike days. Selective industrial action in the form of refusal to undertake normal duties will result in a proportionate loss of pay.
Payroll notification
For each person participating in strike action, the school must ensure that they notify payroll accordingly via iTrent. Changes to iTrent must be entered by the 11th of the month to ensure deductions are processed in the relevant period; changes made after that date will not be made until the following month.
Foundation and voluntary aided schools are advised to take note of the Local Authority’s policy in respect of deductions from salary as outlined above.
Step-by-step instructions for how to update iTrent
Payroll is notified when the change is made to the employee’s iTrent record. The absence will be recorded as unpaid due to industrial action on the next pay run. It will then be reported correctly to Teachers’ Pensions on the Monthly Contributions Reconciliation and to Peninsula Pensions as unpaid leave.
The process to make the change is:
Go to record in iTrent and select ‘Other Absences’, then ‘New Other Absence Record’.
Select the Absence period as ‘Full day’, enter the date, and select ‘Industrial Action’ for the absence type and absence reason.
Save the record. iTrent will record this correctly as unpaid due to industrial action on the next pay run. It will then be reported correctly to Teachers’ Pensions on the Monthly Contributions Reconciliation as unpaid leave.
Pension
Local Government Pension Scheme (LGPS)
Under the 2014 LGPS rules, if employees have a period of no pay due to a trade dispute they will not be building pension during that period, which may have implications for their overall pension*.
However, they can, if they wish, buy back the amount of pension lost during that period by paying Additional Pension Contributions (APCs). Employees can do this regardless of whether they are in the main or 50/50 sections of the pension scheme and there is no time constraint on when this is purchased. Buying back lost pension following a trade dispute would be at full cost to the employee.
Payroll can provide details for employees who wish to pay for Additional Pension Contributions (APCs), which will cover the lost Local Government Pension during strike action.
Employees are required to complete the Buy Lost Pension Calculator to assist in the completion of the calculation. The amount of lost pensionable pay will be printed on the pay advice in the month that the strike deduction is made.
Once completed, employees must print off an election form and send it to payroll as soon as possible. Please note that there is no need to provide a statement of the amount of pay lost, payroll will check the amount showing on the election form.
As the amount of ‘lost’ pension is likely to be relatively low, the APC will be paid as a lump sum deducted from pay. For further information please visit the Peninsula Pensions website where an employee’s factsheet can be found.
* such as marginally reduce the amount of pension to be credited to their pension account; may have a marginal impact on the final pay figure used in the calculation of benefits for a scheme member who was in the scheme prior to 1 April 2014 and who leaves within 12 months of the end of the trade dispute period or, in some cases, within three years of the end of the trade dispute period; in some cases, extend by a day the date the ‘85 year rule’ is attained.
Teachers’ Pension Scheme
Absence due to industrial action cannot be classed as pensionable service within the Teachers’ Pension Scheme regulations and will be shown as days excluded.
Sickness absence and working from home on strike days
The right to self-certify for sickness absence may be withdrawn on the day of a strike and will be at managers’ discretion. Any employee who is sick on a strike day must ensure they speak with their line manager when they report their sickness and may be asked to obtain a medical certificate.
If the employee is requested to obtain a medical certificate, but fails to do so, the Authority reserves the right to withhold their pay. Where an employee incurs a charge in obtaining a medical certificate this will be reimbursed.
Normal procedures for authorising occasional home working on the day of action will apply and managers must obtain confirmation that these employees are working normally.
Annual leave and time off in lieu on strike days
As soon as potential strike dates have been announced, staff should be informed that all requests for annual leave or time off in lieu for the date of the proposed strike which are not already booked and approved must be refused by managers, unless it is for unavoidable reasons, such as a funeral or to care for a child whose school will be closed due to the strike, see more details below.
Employees with childcare responsibilities who may be affected by strike action in other schools
Employees who are not striking are expected to adhere to their normal hours of work and working arrangements and to make every reasonable effort to achieve this on strike days. However whilst the employee’s school may not need to close, there may be employees with school age children who are affected by the closure of the school they attend.
The potential for strike action is usually widely publicised so employees who may be affected by school closures are expected to consider the options available to them and where possible make arrangements that will enable them to attend work.
If an employee has not been able to make arrangements that enable them to attend work in the normal way they must speak to their headteacher or manager immediately and agree their working/leave arrangements for that day.
In exceptional circumstances it may be appropriate for an employee to work from home or take annual or unpaid leave, however, this should be assessed and agreed on a case-by-case basis depending on their role and the circumstances. It is recommended that the employee confirms their request in writing.
Employees should be made aware that any false declaration could constitute misconduct.
Emergency time off for dependants should not be granted on the day of the strike due to school closures except in very exceptional circumstances, for example, if a member of staff has made contingency plans in the event of a school closure, but these broke down unexpectedly at short notice due to events beyond the control of the employee.
Emergency time off for dependants for reasons that are not associated with the strike should be managed in the normal way as outlined in the Emergency Time Off for Dependants Policy.
If employees who are paid by timesheet lose working time, care should be taken to ensure that leave or other credits or debits are included in the hours recorded for the week. Payroll will make payment according to the hours certified on timesheets.
Picket lines
Employees who refuse to cross picket lines where they have not been balloted are likely to be regarded as taking unofficial industrial action. There are a number of legal consequences for such action, which is why trade unions tend to advise against it.
Where it is known that non-attendance is in support of the action, the school should make a record of the absence and a deduction from salary will be made as if the employee had taken official strike action.
However, if an employee has made every effort to cross a picket line but was unable to do so then a decision may be made not to treat the absence as industrial action.
During industrial action, any acts of violence, intimidation, harassment or damage to property will be treated as misconduct and will be subject to disciplinary procedures.
Unauthorised absences
Schools should not unfairly penalise employees who clearly make every effort to report for work. However, employees who fail to notify the headteacher or manager that they are unable to attend work and have not agreed alternative arrangements will be regarded as having taken unauthorised absence and therefore will not be paid for the period of absence. This may also be dealt with under the Disciplinary Policy.