Strikes Act: Update for schools and colleges

The Strikes (Minimum Service Levels) Act 2023 (the ‘Strikes Act’) was introduced to the statute book in July 2023. It paved the way for minimum service levels (‘MSLs’) to be maintained in relevant services in the event of strike action by unions. This note summaries the latest development, recaps on the Strikes Act, and considers what is next in the context of MSLs for schools and colleges.

Invite to unions to voluntarily agree minimum service levels

On 20 October 2023 the DfE announced the education secretary had written to education unions inviting them, on a voluntary basis, to discuss and agree MSLs in the event of strike action (press release available here.) The response from unions indicates that it is unlikely that they will voluntarily agree MSLs. 

When the Strikes Act (available here) was introduced it had no bite in relation to education because there were no MSLs (the Strikes Act states MSLs are to be introduced through regulations, following consultation with ‘such persons the secretary of state considers appropriate’) and the indicators from the Government were that it hoped to not have to rely on the Act in relation to education (here is the January 2023 press release). This latest announcement states that the education secretary had confirmed in her letter to education unions that if they did not agree MSLs the DfE would look to consult on MSLs in accordance with the Strikes Act.

Union response 

Unsurprisingly, education unions have responded strongly to the letter inviting them to voluntarily agree MSLs. The NEU confirmed they would strongly oppose the introduction of MSLs. Daniel Kebede, general secretary of the NEU stated in their press release (available here):

We do not acknowledge the validity of MSLs given their impact on the fundamental right to strike, therefore we do not believe this is an appropriate topic for the Government or Department for Education to regulate.

Geoff Barton general secretary of ASCL stated: 

Unimaginable that there will be any agreement over legislation that involves removing the basic rights of employees.

(press release available here),

and Paul Whiteman, general secretary of the NAHT referred to the letter as an overtly hostile act (press release available here).

Analysis 

The initial response from the education unions strongly suggests there will be no voluntary agreement to MSLs. Assuming there is not, the next step for the DfE is to announce a consultation on MSLs for education. This would be consistent with the press release and the requirements of the Strikes Act which requires consultation if MSLs are to be introduced. 

What this means for schools and colleges is that we are not likely to see the Strikes Act bite until the Government has completed a consultation and MSLs regulations are approved by Parliament.

A consultation will give schools and colleges the opportunity to comment on proposed MSLs. It is worth noting that the DfE has not sought the view of schools or colleges at this voluntary stage and that if voluntary agreement on MSLs is reached with unions (this appears unlikely), we might yet see a consultation noting it is required by the Strikes Act and failure to consult could lead to challenge. Indeed, it is our view that schools and colleges should be consulted before the introduction of MSLs since schools and colleges are the providers of education and will be the ones that provide the MSLs.

Consultation process and what is next

The Strikes Act applies to other services and we have seen consultations in services including ambulance, hospitals, fire and rescue, and passenger rail services. On 2 October 2023 the DfE announced it would launch a consultation in universities also (press release available here). What we see from these consultations is that the Government has invited responses, including from employers, and the consultation has typically run for 6 weeks up to 3 months (the consultation on boarder security was 6 weeks, other consultations have been three months, and the latest consultation on hospital services which is two months). 

Following consultation, the Government is likely to publish a response and, subject to the findings of the consultation, draft regulations containing MSLs to be passed through parliament. By way of indicator and for context, consultations on MSLs in passenger transport rail, ambulance and fire and rescue services opened in February 2023 and closed in May 2023 and the Government is yet to publish outcomes or draft regulations in respect of these services.

Stone King is watching the developments closely and intends to respond to any consultation that follows.

Recap: The Strikes Act 

The announcement is the coming into force in July of the Strikes Act which in summary provided that when a trade union calls a strike in a relevant service (education is a relevant service for the purpose of the Strikes Act but is not further defined) to which MSLs (MSLs are not defined in the Strikes Act) apply, after consulting the union on the number of persons to be identified and the work to be specified in the notice, and having regard to any views expressed by the union, employers may issue a work notice identifying the workers that are required to work and specifying the work they are required to do to meet the MSLs during the strike.

The work notice must not identify more workers than are reasonably necessary to meet the MSLs and when identifying workers the employer must not have regard to whether the individual is or not, a member of a trade union, has taken part in activities of a trade union, or has used trade union services.

The Strikes Act also sets out the time frame in which a work notice must be issued and that an employer can vary a work notice prior to a strike date.

The Strikes Act has consequences for employees and trade unions who do not follow it. 

• Employees who are identified in a work notice and given notice of such, including notice of the work they were required to carry out, but nonetheless breach the work notice and are subsequently dismissed, will not be protected by the legislation which deems dismissals for participating in strike action automatically unfair (an employee may still challenge a dismissal on  ordinary unfair dismissal grounds). 

• In relation to trade unions, they are afforded certain protection from liability in relation to strikes, subject to the strike action complying with the relevant legislation, and specific action which is excluded from protection. The Strikes Act provides that if a trade union receives a work notice from an employer in relation to an employee, and fails to take reasonable steps to ensure that all union member identified in the work notice comply with it an act by the trade union either to induce the person to strike or to continue to take part, would not be protected from liability.

What is still not clear about the Strikes Act? 

Back in January 2023 we highlighted a number of questions raised by the then Strikes Bill (available here). If we see a consultation in education we should expect it to set out what MSLs are likely to look like, a consultation may also address other questions raised by the Strikes Act. 

• Colleges and independent schools – The press release indicates it is the Government’s intention for MSLs to be applicable to colleges. The Government’s press release does not specify whether it intends to introduce MSLs in independent schools. Until we receive further information, the consultation on MSLs in hospital services may provide some guidance. In that consultation the Government has focused on urgent or emergency treatment and has asked respondents whether private companies employing staff delivering that service should be required to follow MSL regulations. If the Government follows this approach in respect of education services a consultation may propose MSLs in all establishments providing education to pupils and students aged five to 18, including independent schools. If a consultation does not go this far it is likely to at least pose the question about whether independent schools should be specified in the MSLs regulations. If introduced, we expect MSLs regulations to cover independent schools providing education to pupils with EHCPs.

• Must work notices be issued by schools and colleges? The Act states an employer may give a work notice, intimating that an employer is not compelled to issue a work notice. The consultations in other relevant services indicate that if introduced, MSLs regulations in education may confirm that schools and colleges must provide the MSLs and therefore schools and colleges are likely to consider it necessary to issue work notices to maintain MSLs even if not explicitly required to do so. It is also possible that the Secretary of State may seek to use other ways to direct schools and colleges to issue work notices. However, this is very much speculation at this stage.

Potential issues for schools and colleges 

• Interpreting MSLs – This is likely to be a key practical issue that schools and colleges will have to grapple with, how easy it will be will depend on the level of clarity provided by any subsequent MSLs regulations. 

• Issuing work notices – The Strikes Act states that when selecting workers to identify in a work notice employers should disregard trade union membership, activity and use of trade union services. Our concern is that any act by an employer which identifies and/or selects employees can carry risk from a general employment law perspective, including those that arise as a consequence of the Equality Act 2010. We have previously suggested that guidance on selection could be issued alongside any MSLs regulations, but again, this is speculation at this stage.

• Dismissing staff who breach work notices – In our experience, schools and colleges may be uncomfortable with taking this action, even if the law provided some protection from claims. Many schools and colleges work collaboratively and successfully with trade unions and so schools and colleges may be concerned that any action in this regard is likely to impact on long-term relationship with the unions and employee relations generally.