This guidance was originally published on 20 January 2023 and remains current. The updated questions are from question 15 onwards, including detailed guidance on picketing.
- When are the strikes due to take place?
The NEU has said seven days of teacher strike action will take place in February and March this year. The full list of projected strike days is as follows:
- Wednesday 1 February – all eligible members in England and Wales
- Tuesday 14 February – all eligible members in Wales
- Tuesday 28 February – all eligible members in the North, North West, and Yorkshire and the Humber regions of England
- Wednesday 1 March – all eligible members in the East Midlands, West Midlands and East regions of England
- Thursday 2 March – all eligible members in the South East, South West and London regions of England
- Wednesday 15 March – all eligible members in England and Wales
- Thursday 16 March – all eligible members in England and Wales
- Do staff have to be a member of NEU to strike?
Yes. Only NEU Teachers are allowed to strike on this occasion as their ballot met the threshold.
- Will NEU support staff be called to strike?
No.
- Do striking staff have to strike on every day they are asked to do so by the union?
No. They can choose how many days to participate in
- Do striking staff receive pay?
No. Striking employees are not entitled to be paid for any period during which they are on strike.
In accordance with the ‘Conditions of Service for School Teachers in England and Wales’ commonly known as ‘The Burgundy Book’ a day’s pay is 1/365th of a year for each day of the period of absence.
- How is pension affected?
Strike days do not count for reckonable service purposes within the Teachers’ Pension Scheme. The Teachers’ Pensions website provides guidance on how to record strike days, which should be as “days excluded”, to ensure that pension cover is adjusted appropriately. There is no ability under TPS for a teacher to buy back lost days. The strike days will not be a break in service.
Support staff in the LGPS can buy back the amount of pension lost by choosing to pay extra contributions, known as Additional Pension Contributions (APCs).
- Can an employee be asked whether they are in a union and if they intend to strike?
Yes. While employees are not required to tell their employers whether they intend to take strike action, employers are able to ask staff in advance if they intend to strike to enable them to plan how to manage the strike. If an employee refuses to say if they intend to strike this could have an effect on cover requirements as the absence would be unforeseen and their non-striking teacher colleagues could be directed to provide cover. (see question 9 below). We have also drafted the attached letter.
- Can other teachers be asked to cover for striking colleagues?
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 (STPCD), however, they cannot be compelled to provide cover for other teachers during industrial action:-
52.7. Teachers should be required to provide cover in accordance with paragraph 50.7 only rarely, and only in circumstances that are not foreseeable (this does not apply to teachers who are employed wholly or mainly for the purpose of providing such cover).
Cover 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 by teachers or non-teaching staff.
- Can support staff be asked to cover for striking colleagues?
The Specified Work Regulations 2012 do not prevent schools from using support staff to provide cover supervision or oversee alternative activities. Support staff are able to carry out ‘specified work’ provided they are subject to the direction and supervision of a qualified teacher, and the headteacher is satisfied that they have the skills required to carry out the work.
The Regulations also allow schools to employ industry experts without qualified teacher status as instructors where specialist qualifications and experience are required.
Schools may choose to bring together groups and classes with teachers and support staff working together, as long as pupils’ health and safety is ensured. For pupils older than seven there are no set ratios for the number of staff required to supervise pupils on site.
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 (STPCD), however, they cannot be compelled to provide cover for other teachers during
- Can we use agency staff to provide cover?
Yes. 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.
- Can we ask striking teachers to provide planned work for the class?
Yes, but there is no obligation on them to do so.
- If a striking teacher loses out on PPA time do we have to provide it on an alternative day?
The NEU website says:-
There is no requirement for your head teacher to allow you to postpone your PPA time if you withdraw your labour on the day that it was timetabled.
The STPCD states that PPA time must be provided in units of not less than half an hour during the school’s timetabled teaching week and must amount to not less than 10% of the teacher’s timetabled teaching time.
- What if I have childcare issues on the day of strikes due to my child’s school closing?
Ask staff to try and find someone to look after their child so that they can attend work, if this is not possible and their child’s school closes without advanced warning, the Time Off for Dependants rules will apply. This gives staff reasonable time off to deal with an emergency involving a dependant; pay during this type of leave is discretionary.
- Can an employee bring their child into school if their child’s school is closed?
No, is the simple answer. There is no legal right for an employee to bring their child into work with them. It is doubtful that a school would be insured to allow this. They member of staff should be encouraged to make alternative child care arrangements, if this is not possible and their child’s school closes without advanced warning, the Time Off for Dependants rules will apply. This gives staff reasonable time off to deal with an emergency involving a dependant; pay during this type of leave is discretionary.
- Can support staff in the NEU strike?
No. This is the guidance from NEU Support staff pay | NEU
Support staff voted overwhelming to reject the pay deal and to take industrial action in an attempt to improve it. So why are we not going to be able to strike?
Government anti-trade union legislation means that, in order to achieve a legally enforceable mandate to strike, a union has to receive at least a 50 per cent turnout from the group of members involved.
Sadly, 46.5 per cent of support staff members in England took part in the ballot, just short of the legal minimum. Accordingly, despite the overwhelming majority voting YES for strike action, the NEU cannot call our support staff members in England to take strike action.
As a minimum, they will be treated as being on strike and lose a day’s pay and pension contribution. It can be treated as a disciplinary issue.
Direct from Support staff pay | NEU
The law is clear that the NEU can only call those members covered by the successful ballots to go out on strike; therefore the union is not calling our support staff in England to take strike action.
However, if an individual member of support staff does not want to cross the picket line at their school, they are likely to have their pay deducted for the day in the same way as those taking strike action. It is possible for employers to threaten disciplinary action for what is a technical breach of contract but we would see that as unlikely, inappropriate and provocative.
The Union will support all members threatened with disciplinary action.
- Are other staff allowed to strike?
Further guidance from the DfE (sent out by email on 24 January 2023) stated 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.
- Can representatives from other trade unions encourage their members to take part in the action called by NEU?
DfE guidance is as follows:-
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.
- What if my school has not been notified by the NEU 14 days before the strike?
This would render any strike action unofficial and not protected.
- Can I tell parents which teachers are on strike or is this a breach of GDPR?
If you are closing particular classes and the children in the class are being asked to stay at home you can tell parents that the class will be closed. There is no need to tell parents that the teacher is on strike. It is not a breach of GDPR to disclose the teacher’s name. You have a lawful reason for ‘processing’ the data.
- Can striking employees picket the school?
Yes. The Gov guidance is set out below. We recommend circulating the picketing code of practice as part of a staff briefing.
Taking part in industrial action and strikes: Going on strike and picketing – GOV.UK (www.gov.uk)
Going on strike and picketing
A picket line is where workers and union reps (‘picketers’ or ‘pickets’) stand outside a workplace to tell other people why they are striking. Pickets may also ask people not to:
- do some of their usual work
- go into work
Pickets must not prevent people from going to work or doing their usual work if they want to do so.
The picketing code of practice explains the rules around lawful picketing.
Picketing and the law
It’s a criminal offence for pickets to:
- use threatening or abusive behaviour to people walking past or crossing the picket line
- block people or vehicles trying to get into the workplace which is on strike (called ‘causing an obstruction’ by police)
- carry weapons
- damage property
- cause or threaten to cause a ‘breach of the peace’
- try to block roads near the picket line (called ‘causing an obstruction to the public highway’)
- try to stop the police who are outside the workplace from doing their job
You can have legal action taken against you if you break the law or encourage others to do so when you’re picketing. This includes:
- trespassing (trying to enter a building without permission)
- making a noise nuisance
- using threatening language or offensive material, libel or slander in leaflets, banners, placards, chants or speeches
If you break a court order banning you or your trade union from holding a picket, you could be open to further legal action (otherwise known as ‘contempt of court’).
Mass picketing
Police have special powers to stop a mass picket if they think there’s a danger of:
- serious public disorder (like a riot)
- serious damage to property
The Code of Practice on picketing says usually there should be no more than 6 people outside an entrance to a workplace.
If you don’t stop picketing when told do so by police, you can be arrested.
The Gov guidance is here:-
Handling strike action in schools (publishing.service.gov.uk)
