NASUWT action short of strike action (ASOS) – What it is and how to respond

When the NASUWT ran their most recent vote in relation to industrial action, it balloted members on a national level about taking strike action in relation to pay (which is now resolved). At the same time, the NASUWT also asked its members to vote on taking action short of strike action (ASOS) in relation to workload and working time. The NASUWT were successful in achieving a mandate for ASOS.

What is ASOS?

ASOS typically amounts to actions such as:

• Working to rule: Employees (staff) will only perform their duties in strict accordance with their contract and will not perform extra duties. The aim is to slow down employee productivity.
• Go slow: Employees will deliberately work at a slower pace, again, with the aim to slow down employee productivity.
• Sit-in: Employees will occupy an area within the school’s premises in which to carry out their protest.
• Overtime bans: Employees refuse to perform any overtime.

If you are a school that is affected, you should have received at least 14 days written notice from the NASUWT about the action its members will take in your school. The notice should list the relevant categories of employees who are affected and the number of affected employees in each category. This should help you assess the potential impact on the running of the school. The NASUWT are calling this campaign Time for a Limit and it is in relation to what the union considers to be its members’ excessive workload, unreasonable expectations and the increasing number of hours it takes to fulfil their role. The earliest date on which the action can begin is Monday 18 September 2023.

The NASUWT has produced a detailed action plan, setting out a list of instructions for participating members in relation to duties they should not perform. Further details can be found on the union’s website, but we have included a summary below:

1. Refuse to undertake inappropriately directed duties outside school session times;
2. Refuse to be directed to undertake extracurricular activities;
3. Refuse to be directed to undertake midday supervision of pupils (unless that is required by and remunerated under a separate, non-teaching contract);
4. Refuse to be directed to undertake any work-related tasks or activities during their lunch break;
5. Refuse to be directed to undertake work-related tasks or activities on weekends or Bank Holidays;
6. Refuse to undertake any other duties during Planning, Preparation and Assessment (PPA) time;
7. Refuse to cover for absence other than in circumstances that are not foreseeable;
8. Refuse to undertake routine administrative and clerical tasks;
9. Refuse to co-operate with mock inspections – members will refuse to cooperate with mock inspections or ‘mocksteds’, or activities not required for the purpose of statutory school inspection;
10. Refuse to cooperate with inappropriate planning, marking and data management policies, practices and initiatives that have not been workload impact assessed and the subject of consultation or agreement with the NASUWT.

This type of ASOS or ‘working to rule’ means that the NASUWT are asking its members to only fulfil their contractual duties, as detailed within the School Teacher’s Pay and Conditions Document (STPCD). In short, members are withdrawing their goodwill. This can be significantly disruptive to schools, which are often reliant on teachers taking on additional responsibilities to ensure the smooth running of the school.

The general legal position

ASOS does not carry the same level of legal protection as strike action, although it is technically a form of industrial action. Whether ASOS amounts to a breach of contract is highly fact-specific, largely depending on the substance of the contract. Strictly speaking, employers may exercise disciplinary measures against participating staff as a response to a breach of their contractual obligations. However, in most cases, this is neither practical nor conducive to maintaining a healthy relationship with staff and trade unions and ultimately, any disciplinary measures taken against staff will likely have a detrimental effect on them, which puts the school at risk of tribunal claims.

Options available to affected schools

Any measures taken should be carried out with the aim of minimising disruption to the school and maintaining a healthy relationship with staff, while allowing them to feel they are being listened to.

We recommend the following steps:

1. Firstly, carefully inspect what actions participating staff intend to take;
2. establish whether that action falls within the employee’s contractual duties (also referring to the STPCD and any collective agreements incorporated into their contracts of employment);
3. then decide on what measures to take, be that to enforce the employee’s contractual terms, accept the ASOS (take no action), or attempt to persuade employees to cease the ASOS. These three options are examined in more detail below:

• Enforcing the contract

Any employee’s contract will consist of express and implied terms – such as the implied duty of fidelity and of mutual trust and confidence. If an employee is not willing and able to carry out all of their express and implied contractual duties, their employer may decide to enforce the contract of employment and reject partial performance.   

Prior to any action or in response to any action already taken, it would be prudent for an employer to make intentions clear. If the employees’ actions do not constitute a breach of contract, the school must continue to pay them as usual, meaning that in reality, the school will have little choice but to accept the ASOS. 

Understandably, these measures may be tough, for example, where the employee is ‘working to rule’. However, where employees decide on a ‘go slow’, this is likely to engage the obligations under their implied terms and the above action may work as a remedy.

Employers should not forget that this measure may result in the employee’s detriment. Therefore, our view is that it is best used as a last resort to limit the risk of tribunal claims. The school should give employees advance warning of their intention to enforce the contract (where this applies), allowing them to be fully informed before they act. If withholding pay for ASOS, it will be particularly important to inform employees in advance.

• Accept the action

This will likely be the most pragmatic approach. School employers should communicate with protesting staff and clearly establish what action they intend to take and then (again) review whether this action is a breach of contract. If it is, the school can make the employees aware of this and accept the partial performance of their duties. A contingency plan should of course be established prior to this decision. Employees should also be made aware if partial pay deductions are envisaged.

• Persuasion

There is always the option of circulating internal communications among all staff as a strategy to convince participating employees to consider the needs of the school over the directions of their union and not to take action. This approach should be measured and conciliatory and could, for example, highlight factors such as reputational and financial damage. 

Measures to avoid

• Disciplinary action

Taking disciplinary action against an employee who is participating in the ASOS could lead to a constructive dismissal claim as well as inflaming the situation. Where pay is deducted from employees taking ASOS, this should not be presented as a penalty for taking part in industrial action.   

• Dismissal

Generally, we do not recommend dismissing employees for taking part in ASOS, regardless of whether they have breached their contract or not. Plainly, not dismissing staff will limit the risk of an unfair dismissal claim in the employment tribunal.

• Action short of dismissal

There are no legal restrictions on taking appropriate measures in the context of ASOS. For example, in certain cases it may be deemed appropriate to remove employee benefits, reduce working hours, or impose a loss of overtime. There is, however, a distinct risk that such measures could lead to a constructive dismissal claim, while also causing potential damage to employee relations.