Department for Education provide further guidance on strike action – 24 January 2023

James Williams

The DfE have sent out an email update to schools today to ‘provide clarity on some key aspects’.  Currently, there is no update available on the DfE website.
The further guidance is as follows:-

  • The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides protection against dismissal when taking part in official industrial action. The following employees will benefit from this protection:

Teachers who are members of the NEU who decide to take part in strike action as called by the NEU.

Teachers who are not members of the NEU who decide to take part in strike action as called by the NEU, as long as they are not a member of any other trade union.


  • Teachers who are members of a trade union other than NEU and who decide to take part in strike action as called by the NEU can be subject to dismissal or other disciplinary action.
  • Representatives from other trade unions are also not able to encourage their members to take part in the action called by NEU. Further, NEU and their members cannot seek to persuade non-NEU members to take strike action, including on picket lines. Members of other unions should report to work, unless instructed otherwise, or if they have reason to believe their personal safety is compromised.
  • Headteachers may ask other teachers to cover the classes of those taking industrial action. Where teachers are employed under the School Teachers’ Pay and Conditions Document, however, they cannot be compelled to provide cover for other teachers during industrial action, though they may agree to do so. Teachers who are not taking part in strike action cannot refuse to carry out valid contractual requests from their employer.
  • In all cases, where employees take strike action, they are not entitled to be paid for any period during which they are on strike. Statutory protection against any deduction of wages does not apply in relation to strikes or other industrial action. Days when employees are on strike do not count towards their total length of service which may impact statutory redundancy pay or pensions.
  • Employers may not be aware of which (if any) trade union employees are members of. It can be therefore difficult for employers to know who would be protected against dismissal when taking part in strike action. Trade union membership data is special category data that requires extra protection due to its sensitivity, and employees do not have to tell their employer which trade union (if any) they are a member of or whether they intend to take strike action.
  • A union taking strike action must give each employer notice of their call for strike action, and provide the total number of employees the union reasonably believes will be asked to take strike action in each workplace. School leaders are also able to proactively engage with staff ahead of strike action when developing contingency plans and, in many cases, staff will be willing to notify their employer if they are eligible to strike and whether they intend on doing so.
  • When developing contingency plans, school leaders should refer to our guidance on handling strike action in schools. Our expectation is that school leaders will take all reasonable steps to keep schools open for as many pupils as possible. However, where there is no option but to restrict attendance, priority should be given to vulnerable children and young people, children of critical workers, and pupils due to sit public exams and other formal assessments.
  • Where schools must restrict attendance, they should consider, where possible, providing remote education in line with the guidance on remote education. This guidance has been updated to provide more detail on the use of remote education for a range circumstances beyond COVID-19.
  • School leaders should consult governors, parents, and the local authority, academy trust or diocesan representative (where appropriate) before deciding whether to close or restrict attendance. It is important that parents or carers are notified at the earliest opportunity if their child is unable to attend school due to industrial action

Handling strike action in schools (

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.