Monday 4th December 2023
On 28 November 2023, the Secretary of State for Education launched a consultation on MSLs in schools and colleges in the event of strike action (consultation available here). This follows the Strikes Act and the announcement on 20 October 2023 that the Secretary of State had written to education unions inviting them, on a voluntary basis, to discuss and agree MSLs.
We urge schools, colleges and higher education settings to reply to the consultation by the deadline of 30 January 2024.
MSLs not set to apply to independent schools
The consultation proposes that MSLs will not apply to independent schools, independent training providers, non-maintained special schools and specialist post-16 institutions. The consultation also lists other settings that are out of scope.
The consultation sets out two proposals for MSLs in schools and colleges.
It also requests views on the following:
- use of rotas for strikes of five consecutive school days or more;
- putting in place appropriate arrangements for remote education to pupils not covered by MSLs on strike days; and
- the impact of strike action in higher education.
Proposal 1: MSLs to prioritise attendance for priority cohorts in schools and colleges, namely:
- vulnerable children and young people;
- pupils and students due to take public examinations and formal assessments; and
- children of critical workers.
This proposal is very similar to the DfE’s non-statutory guidance ‘Handling strike action in schools which schools will be familiar with.
The consultation proposes that vulnerable children and young people are defined using these established definitions:
a) children who have a child in need plan;
b) children on a child protection plan;
c) children who are looked after by the local authority;
d) children and young people who have an EHCP aged 0-25; and
e) children or young people who receive SEN support.
Pupils and students due to take public examinations and formal assessments will include the following individuals whose relevant exams or formal assessments are due in the same academic year as the strike, regardless of when in the academic year the strike, or the exam, falls:
In primary education:
- year 6 pupils undertaking end of KS2 national curriculum assessments; and
- pupils participating in statutory KS2 trials, such as the anchor trial.
(Reception baseline assessment, end of KS1 assessments, phonics screening check and multiplication tables check are out of scope.)
In secondary and further education:
- students taking GCSEs, AS and A levels and Vocational and Technical Qualifications (VTQs), including T Levels, and other national qualifications (there is no age limit for students in scope of an MSL); and
- year 11 students participating in the National Reference Test.
(The government proposes that apprentices are out of scope.)
Children of critical workers
This cohort, the Government proposes, will be different to our existing understanding of children of critical workers as set out by Government guidance.
Critical workers will include:
- those in health services, fire and rescue services, education services, transport services, border security and the decommissioning of nuclear installations; and
- those unable to strike, such as police officers, members of the armed forces and prison officers.
The proposal states children of critical workers will include only those not old enough to look after themselves (up to and including year 7) and in a two-parent, carer or guardian household, only where both are critical workers.
Proposal 2: MSLs to prioritise attendance for:
- all primary school pupils; and
- priority cohorts in secondary and further education settings (as set out in Proposal 1).
The consultation assumes the respondent supports the principle of MSLs in education. The reality is that the Strikes Act and the Government’s announcements in respect of MSLs in education have received significant criticism.
Proposal 1 is likely to have the practical impact of significantly limiting the ability of staff working in special schools and colleges, alternative provision, SEN units and resource provisions – whom work with vulnerable children and young people – to strike at all. Proposal 2 is likely to have a similar, additional impact with regard to staff in primary education.
In previous articles, we have highlighted how the Strikes Act states an employer may give a work notice but is not compelled to do so – the consultation reiterates this and does not indicate that schools and colleges will be required to maintain MSLs during a strike. What is not clear is whether there is likely to be any consequence for not issuing a work notice or not maintaining MSLs.
The proposals push the selection of staff to be named in work notices onto schools and colleges, placing them in potential conflict with staff and unions. 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. Previously, we have indicated our concern 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.
A practical reality of the proposals is that school and college leaders will need to consider whether to name themselves in work notices and, if named staff don’t comply, whether to take action, noting the impact this could have on employee relations.
The broader issue for schools and colleges is the potential impact that the introduction of MSLs could have on recruitment and retention, with schools and colleges already in competition with sectors able to offer better pay and more flexibility.
The Strikes Act could face legal challenges. On 24 November 2023, the Joint Committee on Human Rights expressed their concerns about the Strikes Act and its disproportionate interference with Article 11 of the European Convention on Human Rights, which has been interpreted as covering the taking of strike action (letter available here).
This consultation was expected and, noting the consultation ends on 30 January 2024 – and in respect of border security, passenger railway services and NHS ambulance services, draft regulations are expected to be passed before the end of 2023 – the Government looks likely to seek to implement MSLs through regulation in schools and colleges before the next election. Note, Labour has previously said it would repeal the Strikes Act.
The consultation closes on 30 January 2024 and we would urge schools, colleges and higher education settings to respond.
If you would like further information on this topic, please do contact the Stone King Employment Team.