As I write, today is a regional strike day in schools in the West Midlands with two more national strike days occurring on 15 and 16 March. The increase in strike action has been accompanied by an increase in a variety of different strike-related employment law questions. For a Q and A flavour of recent questions that we have been asked in the education sector, read on.

• Do staff have to tell us if they are striking or not?

To enable planning for cover during strike action, employers are permitted to ask staff whether they will be participating in industrial action or strikes. However, staff do not have to tell their employers when asked. This obviously can be problematic when it comes to arranging sufficient cover. 

• One of my staff is striking but is not part of a union

The law protects non-union members and members of other unions who take part in official industrial action. Like their unionised colleagues, non-union members are not entitled to be paid for days when they are striking and are protected against dismissal if that dismissal is because of involvement in strike action. The issue of whether they are protected from any other detriment short of dismissal is currently being debated by the courts. (See the answer to our final question for further details on that issue). We would advise that any member of staff who is striking as part of lawful strike action is treated the same regardless of their union membership. 

• Can I use agency staff to cover for striking staff?

Following a change in the law in the summer of 2022, employers can now use agency staff to provide cover when staff are striking. (Note, this does not apply in Wales.) This is not a popular change with the unions and the law is being challenged but at the time of writing is still in force. 

• If an employee cannot get to work because of strikes in their children's school, are they entitled to be paid?

If their role means they are unable to work from home (see question below) then you will need to have a conversation with the employee about what leave they will take. Does your school have any paid emergency leave provision, and would the employee qualify for that? Recent case law suggests even if the employee knew about the absence for several weeks and had tried to get childcare but failed then they were still entitled to emergency leave. The law provides for unpaid dependent's leave in an emergency or alternatively an employee could take a day's paid holiday. Encourage staff who may be in this situation to start the conversation with you as soon as possible – there is a lot of uncertainty about where and when strikes will hit but pre-empting these with initial conversations is advisable. 

• An employee needs to make alternative travel arrangements during strikes and cannot work a full day - can I pay them less?

We would always advise having a conversation with the employee about any way they could make the time up they have missed prior to reducing their pay for time missed. Whilst technically they are not entitled to payment when they have not worked it is not a good employee relations strategy. Of course, if you feel employees are 'playing the system' and using the excuse of strikes to arrive late or leave early you could address this as a disciplinary matter. 

• How do I approach an employee who says they are WFH when I know they have three primary school-aged children at home because of striking teachers?

This again is an opportunity for constructive discussions rather than the letter of the law. When the request is made, ask open questions as to what hours they will work and whether they need to flex hours on that day. Also, offer alternatives to them e.g. emergency dependent’s leave, paid holiday or making up hours at a later date, as they may not realise this is an option. You may find that the employee reiterates they want to work from home, and you continue to be concerned about their output for that day. Given the current sporadic nature of the strikes, you may want to turn a blind eye to one or possibly two occasions. However, if it happens more often and their work clearly struggles that will be a time for a more robust conversation.   

• Does an employee get maternity pay if they strike while on maternity leave?

Employees on maternity leave cannot strike as they are not required to work on the day of the strike. Hence, they are entitled to whatever maternity pay they have qualified for be that statutory or contractual maternity pay. However, participating in strike action could affect an employee’s entitlement to SMP. Strike action does not count towards continuous employment so any days striking will be taken off the 26 weeks of continuous employment an employee needs 15 weeks prior to the expected due date. Contractual maternity pay in addition to SMP will depend on the terms of the policy.

• Can a non-striking teacher be asked to cover a striking teacher’s absence? 

You can ask a non-striking teacher to cover for a striking colleague but not necessarily compel them to do so. If staff are employed under School Teachers’ Pay and Conditions 2022 (STPC) then they cannot be compelled. If they are not under the STPC, the issue remains whether the instruction to cover is a reasonable management instruction which they should follow as per their contract of employment. Failure to do so could be a potential disciplinary matter. A cover teacher employed to cover absences such as strikes can be compelled. Should they refuse, it would be deemed objectively unreasonable and so disciplinary action would be appropriate if you so choose to go down that route. (See question below regards issues between striking and non-striking staff.)   

• An employee on sick leave with alleged mobility problems was on the picket line - can we stop sick pay?

Recent case law warns against removing sick pay in instances where the employer felt the employee was not genuinely sick. If there is concern that the employee is not sick or not as sick as they are maintaining then initiate an investigation, involve occupational health and if necessary, instigate disciplinary action. Continue to pay whatever sick pay they are entitled to throughout this process especially if there is any hint of a disability. 

• What steps should we take to address growing animosity between striking and non-striking staff?

This can be an issue, especially when staff are being called in to cover the work of striking staff (see above question). There may be disagreements about the wisdom of striking and feelings may run high. In these circumstances, we would advise that you remind all staff of your policy which outlines the behaviour expected. This could be within your Code of Conduct, your Dignity at Work Policy, or your anti Bullying Policy. Should any member of staff, regardless of their views on the strike, breach the provisions of the policy then that may trigger the disciplinary policy. It is important to stress that any disciplinary action would be taken because of that member of staff’s behaviour to a colleague and not because of any strike action they were involved in. Failure to stress that distinction should you take a striking staff member through the disciplinary process could result in an accusation of detrimental treatment on account of strike action. Currently, the Supreme Court is hearing a case as to whether TULRCA protects employees from detriment whilst on strike action. It definitively protects employees from dismissal for participating in strike action, however, it is for the Supreme Court to decide whether employees are protected from detrimental action short of dismissal whilst striking. Whilst we await that judgement, we would advise reiterating to staff the importance of respect for each other in accordance with the relevant policies and avoid taking any further action unless absolutely necessary. 

If you have any further questions or require support, please feel free to contact Katherine Sinclair.