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Top questions being asked about the strikes

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Last week, the National Education Union (NEU), the county’s biggest teaching union announced that its members would be taking strike action across England & Wales from 1st February 2023. However, the school leaders’ union the NAHT did not achieve the minimum legal turnout threshold in its ballot - but will consider re-running the vote due to concerns that postal strikes impacted on the delivery and return of ballot papers. The NASUWT teaching union is also considering re-balloting members, too, for the same reason.

Beyond these headlines, there are a lot of practical questions; chiefly for those teachers taking part in the strike action and the schools they work in. We've compiled a list of the key information you need to know:

1. What dates are the strikes?

​There are seven strike days proposed by the NEU, four of which will involve action being taken by all members:

Wednesday 1 February 2023: all eligible members in England and Wales.
Tuesday 14 February 2023: all eligible members in Wales.
Wednesday 15 March 2023: all eligible members in England and Wales.
Thursday 16 March 2023: all eligible members in England and Wales.

There are also some regional-specific strikes dates, as follows:

Tuesday 28 February 2023: all eligible members in the following English regions: Northern, North West, Yorkshire, and the Humber.
Wednesday 1 March 2023: all eligible members in the following English regions: East Midlands, West Midlands, and Eastern.
Thursday 2 March 2023: all eligible members in the following English regions: London, South East, South West.

2. How will schools be affected?

The NEU says 23,400 schools will be impacted across England and Wales. This is perhaps not surprising, given that 121,253 members voted “yes” for strikes and will therefore be expected to take part. By contrast, only 12,811 voted “no”.

3. What do teachers do on strike days?

Some teachers may be on picket lines or may join marches demonstrating for a better pay deal. These events will be coordinated by union representatives. Otherwise, staff will essentially be free to do as they wish on the days and not be expected to complete any duties related to their jobs.

4. How does it affect my pay?

For permanent, contracted school staff: Any staff involved in a strike day will have one day’s pay deducted. How a day’s pay is calculated is outlined in new government guidance, Handling strike action in schools. On page 17 it explains that “pay deductions should be made on the basis of 1/365th of their annual salary for each day of strike action”. The amount that is deducted will depend on the staff member’s salary, and whether they are part-time or full-time. It is worth noting that as your pay will be reduced so will national insurance and tax contributions.

Striking will also impact pension contributions and it should be noted that strike days do not count for “reckonable service purposes” within the Teachers’ Pension Scheme. Striking can also impact on redundancy payments if the loss of days for strike action reduces the number of full years of continuous employment.

For more details, check the Teachers’ Pensions website.

For agency staff, things are a little more straightforward. Agency staff are employed on a contact for service. Therefore, if you choose to strike and decline any work offered, you will simply not receive any pay for that day.

5. Does this mean schools will definitely close for the strike days?
​Despite the strikes being planned, the government’s new guidance makes it clear that schools are expected to stay open if possible:

In the event of a strike, the Department for Education expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.

What’s more, the government says schools that are forced to restrict places should prioritise the following groups:

  • Vulnerable children and young people.

  • Children of critical workers.

  • Pupils due to take public examinations and other formal assessments.

This could be done by putting pupils together in single classes with any teachers that are working, similar to how some schools operated during lockdowns during the pandemic. However, schools unable to meet safe thresholds for cover, or where not enough senior staff are on-site, may well have to close.

6. Can you strike if you’re not in a union?

​You are entitled to join strike action if you do not belong to another union. However, anyone in another union that did not vote for strike action cannot join the official strike action.

7. Can a person join or leave a union after the strike action has been announced?

If a person wishes to join a union with a planned strike, this is possible up until the day before the strike is due to take place. In the case of the strike announced by the NEU for 1st February 2023, that date is 31st January 31.

If a person wishes to leave a union, they can do so at any time. It is also possible to belong to two unions or to belong to a union that has called a strike and decide to not take part in the strike action.

8. Can a head teacher or supply teaching agency ask if they belong to a union or if they intend to strike?

Although a head teacher may ask staff if they belong to a union, or if they intend to strike, there is no obligation on staff to share that information.

The DfE’s Handling strike action guidance says, on page five: “While employees are not required to tell their employers whether they intend to take strike action, employers are able to ask the staff in advance if they intend to strike.

If the school has a union representative, then the representative will meet with the headteacher and discuss the situation.

9. Can a teacher be asked to cover for a striking colleague?

Although a head teacher is allowed to ask their non-striking staff to cover for their absent colleagues, the new government guidance makes it clear on page five that these staff cannot be “compelled” to do so.

Head teachers 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,” it says.

However, members of staff who are employed to provide cover (for example, cover supervisors) can be directed to cover for their striking colleagues.

10. Can support staff cover lessons?

School support staff who are members of the NASUWT took part in a strike ballot, but the turnout for this vote was below the legal minimum threshold. As a result, support staff will be expected to be in their school if it is open, so they could be an option for the cover. However, asking them to cover teacher roles is complicated.

For maintained schools, there is a legal requirement that lessons are taught by someone with qualified teacher status, meaning most support staff will not be eligible to do this.

But these schools can use support staff to provide “cover supervision or oversee alternative activities”, according to government guidance.

Support staff are also able to carry out “specified work”, provided they are subject to the “direction and supervision of a qualified teacher, and the head teacher is satisfied that they have the skills required to carry out the work”.

However, free schools, academies established after 29th July 2012, and any academy established prior to this date that has agreed on a change to their funding agreement, are exempt from this and so can use support staff for lesson cover if required.

11. Can schools use agency staff to cover striking teachers?

In a word, yes. Due to a change in legislation last summer, schools and trusts are legally entitled to bring in temporary agency staff to provide cover, which was not permitted before.

Polly O’Malley, partner and employment law expert at law firm Stone King, said: “The legislative change that was brought in last July allowing schools to legally bring in temporary agency staff to provide cover during strike action will still stand for any strikes occurring over the next few months.

She notes, though, that schools should not consider this an easy route out of the disruption that the strikes will cause because there are nowhere near the number of agency staff needed relative to the strike impact. “There are limited numbers of agency workers and already a high reliance on agency staff across schools,” she says.

These workers can, of course, be selective about where they accept an assignment and may not wish to cross a picket line.”

12. Can schools use volunteers to help?

Government guidance says schools can use “existing members of the school volunteer workforce” who have relevant Disclosure and Barring Service (DBS) checks to provide supervision.

The guidance also says schools could seek out new volunteers but they would have to work alongside staff or a volunteer with a DBS check if they had no suitable DBS check themselves.

13. What happens if the headteacher goes on strike?

Although the school leaders’ union the NAHT did not meet the minimum turnout threshold for strikes in it's ballot, head teachers can be members of the NEU, so it could be that some will strike, too. The government guidance says if this happens, any leader should delegate their responsibilities to another member of the leadership team. If all senior staff are on strike, the government proposes that the governing body or academy trust asks “another staff member to carry out the headteacher’s duties; for example, a senior teacher or a retired headteacher employed by the school”.

Realistically, though, similar to how there is no guarantee of agency staff being in such supply that they can cover striking teachers, finding other heads, such as recently retired heads, may be a tall order for schools. Multi-academy trusts, though, which have more staff to draw on, potentially from across geographical regions, may have more luck finding current staff who can be parachuted in for a day’s cover.

​Thank you for reading, if you have any further questions that you feel we've not answered please contact us here.

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