Management Information Sheet
Teachers Industrial Action
You will be aware from the press that NASUWT and NUT announced that their joint membership will commence action short of strike action with effect from 26 September 2012. However, since then, on 24th September, the NUT retracted their notice. The reason for the postponement, as we understand it, is that the notice to employers did not state whether the action would be continuous or discontinuous. This could technically render the action unlawful. However, it will be issuing a new notice for continuous action short of a strike to commence on 3rd October so the action has only been delayed. Therefore this advice anticipates that joint action will still take place.
This is part of their “campaign to protect pay and working conditions†– their concerns being particularly, but not exclusively, about the Government’s proposed changes to pensions and teachers’ pay and its approach to performance management and classroom observation.
The Unions held a Ballot last year and this gave them the mandate to call for action over a period of time.
What is action short of strike action? This is a form of industrial action in which employees adhere strictly to their contracts of employment / conditions of service and through this intend that the employer’s business will be disrupted.
The NUT and NASUWT have developed joint “instructions’ to their members about what they should/must not do as part of this action and each has issued their own guidance to their membership in this respect:-
NUT
NASUWT
Advice of HR Shared Service for Norfolk Schools / Academies
Where one or more members of staff refuses to carry out certain duties, and claims that this is part of a ‘work to rule’, it will be necessary to consider whether those duties are genuinely outside the requirements of the contract of employment before determining what action to take. Schools will make their own responses – the following comments are intended to guide over what could be seen as reasonable responses.
To assist schools and academies in managing the action with their staff, we have provided comment on each of the Union instructions to their members at the end of this document.
Where schools are confident that the employee is in breach of their contract by refusing to undertake certain activities, the Governing Body should write to the employee making it clear that they do not accept partial performance of the employment contract.
In keeping with the tenure of the LGE advice, it is not recommended in such cases that teachers are sent home or are regarded as working on a voluntary basis i.e. that they are not entitled to pay due to partial performance. However the Governing Body should consider making an appropriate deduction from salary.
This advice is consistent with the advice of the Local Government Employers, set out below.
Employer response of the Local Government Employers
The Local Government Employers (LGE) advice is as follows:
For industrial action short of a strike or ‘partial performance’ of duties an employer is entitled to refuse to accept the partial performance of the contract of employment offered by employees. This would mean telling employees that they should only attend work when they are prepared to work in full compliance with their contracts. Until they do so they will have no entitlement to pay.
In many cases, employees will, despite such instructions, continue to attend work and claim pay for the work they have carried out. It is, therefore, imperative that governing bodies make their non-acceptance of partial performance clear to teachers. Specifically, teachers should be made fully aware that any work undertaken will be regarded as voluntary and will not attract any pay. The courts have issued a warning to employers that they must be able to show that their position was genuine and that employees who continue to work could not have been confused or misled (for example, by being issued with work). The employer is not, however, required to send employees home or prevent them in some other way from performing any work if the employees insist on doing so.
Despite the legal entitlement to deduct all pay in instances of partial performance, governing bodies and local authorities may decide that it is in the interests of continuing to provide a service, in this case to continue to provide education to the students at the school, to take a different approach.
In many instances an employer is likely to prefer to allow employees to continue to work during industrial action short of a strike, and instead make an appropriate deduction from their pay. The issue then is the assessment of an appropriate deduction.
Salary deductions The LGE advice on this matter is as follows:
In principle, the deduction represents damages arising from the employee's breach of contract and the principle applied to pay deductions in these circumstances is one of 'equitable set-off'. In other words, the employee's breach of his or her contract gives the employer a claim in damages. Instead of having to take that claim separately to a county court, the employer can set it off against the employee's wages.
It is often difficult to make a pre-estimate of the damages caused by each individual employee's breach of contract. In practice, deductions are usually restricted to a proportion of pay that fairly recognises the fact that the employee is not performing their full contractual duties. Governing bodies that make a reasonable attempt to do this should withstand any legal challenge, and the cases below set out how the courts have approached deductions.
In Royle v Trafford Metropolitan Borough Council [1984] IRLR 184, a teacher refused, as part of a campaign of industrial action, to take classes different from those for which he had been previously responsible or to accept additional children into his classes. The High Court held that a proportionate deduction of 5/36ths of the teacher's salary was a reasonable estimate of the damages incurred. This was based on the number of children excluded by the teacher from the class. The Court noted that no replacement teacher had been employed to teach the children excluded from the class, and that the authority had not been required to meet any claim from parents for failure to educate their children.
When communicating their response to teachers, governing bodies should ensure that it is made clear to them that deductions are made in lieu of damages for their breach of contract. Under no circumstances should deductions be viewed or presented as a penalty for taking industrial action.
There maybe cases where headteachers/principals are also members of the trade unions that are taking action. This means that Governors, probably through the Chair of Governors, will need to carry out the following steps.
Step 1 – Governors should remind staff that they should only attend work when they are fully prepared to work in compliance with their contract and unless they do so they will have no entitlement to pay.
Step 2 – If teachers ignore this request and turn up to work and insist on carrying out their union directive then the advice shown above and via the following link should be undertaken:-
Specific advice on industrial action
What decisions can staff take in relation to the instruction to take industrial action?
Employees who are in a trade union that has balloted and has a mandate for industrial action must make a personal decision on whether or not they wish to support the industrial action. Staff who are members of trade unions that have not balloted for industrial action do not have legal protection if they choose to take industrial action and would be in further breach of their contracts. This might expose them to legal action as consideration can be given to take action against an employee in this category if services would be compromised by their action. It is a quirk of employment law that employees who do not belong to a trade union but decide to take industrial action have the same protection as a colleague in a trade union that holds a mandate for industrial action. Any staff in this group may wish to seek their own legal advice before considering their position.
Requesting a deduction to be made from pay:
We are in the process of defining our advice on appropriate deductions of pay and a process that Schools can use to notify our payroll service. Further advice will be given on this issue in the near future.
It is clear that some action will result in relation to the unions’ directive and there are growing pressures on schools in relation to recent appraisal and OFSTED changes. We are aware of this and if you have any particular queries or concerns please contact HR Direct
This is part of their “campaign to protect pay and working conditions†– their concerns being particularly, but not exclusively, about the Government’s proposed changes to pensions and teachers’ pay and its approach to performance management and classroom observation.
The Unions held a Ballot last year and this gave them the mandate to call for action over a period of time.
What is action short of strike action? This is a form of industrial action in which employees adhere strictly to their contracts of employment / conditions of service and through this intend that the employer’s business will be disrupted.
The NUT and NASUWT have developed joint “instructions’ to their members about what they should/must not do as part of this action and each has issued their own guidance to their membership in this respect:-
NUT
NASUWT
Advice of HR Shared Service for Norfolk Schools / Academies
Where one or more members of staff refuses to carry out certain duties, and claims that this is part of a ‘work to rule’, it will be necessary to consider whether those duties are genuinely outside the requirements of the contract of employment before determining what action to take. Schools will make their own responses – the following comments are intended to guide over what could be seen as reasonable responses.
To assist schools and academies in managing the action with their staff, we have provided comment on each of the Union instructions to their members at the end of this document.
Where schools are confident that the employee is in breach of their contract by refusing to undertake certain activities, the Governing Body should write to the employee making it clear that they do not accept partial performance of the employment contract.
In keeping with the tenure of the LGE advice, it is not recommended in such cases that teachers are sent home or are regarded as working on a voluntary basis i.e. that they are not entitled to pay due to partial performance. However the Governing Body should consider making an appropriate deduction from salary.
This advice is consistent with the advice of the Local Government Employers, set out below.
Employer response of the Local Government Employers
The Local Government Employers (LGE) advice is as follows:
For industrial action short of a strike or ‘partial performance’ of duties an employer is entitled to refuse to accept the partial performance of the contract of employment offered by employees. This would mean telling employees that they should only attend work when they are prepared to work in full compliance with their contracts. Until they do so they will have no entitlement to pay.
In many cases, employees will, despite such instructions, continue to attend work and claim pay for the work they have carried out. It is, therefore, imperative that governing bodies make their non-acceptance of partial performance clear to teachers. Specifically, teachers should be made fully aware that any work undertaken will be regarded as voluntary and will not attract any pay. The courts have issued a warning to employers that they must be able to show that their position was genuine and that employees who continue to work could not have been confused or misled (for example, by being issued with work). The employer is not, however, required to send employees home or prevent them in some other way from performing any work if the employees insist on doing so.
Despite the legal entitlement to deduct all pay in instances of partial performance, governing bodies and local authorities may decide that it is in the interests of continuing to provide a service, in this case to continue to provide education to the students at the school, to take a different approach.
In many instances an employer is likely to prefer to allow employees to continue to work during industrial action short of a strike, and instead make an appropriate deduction from their pay. The issue then is the assessment of an appropriate deduction.
Salary deductions The LGE advice on this matter is as follows:
In principle, the deduction represents damages arising from the employee's breach of contract and the principle applied to pay deductions in these circumstances is one of 'equitable set-off'. In other words, the employee's breach of his or her contract gives the employer a claim in damages. Instead of having to take that claim separately to a county court, the employer can set it off against the employee's wages.
It is often difficult to make a pre-estimate of the damages caused by each individual employee's breach of contract. In practice, deductions are usually restricted to a proportion of pay that fairly recognises the fact that the employee is not performing their full contractual duties. Governing bodies that make a reasonable attempt to do this should withstand any legal challenge, and the cases below set out how the courts have approached deductions.
In Royle v Trafford Metropolitan Borough Council [1984] IRLR 184, a teacher refused, as part of a campaign of industrial action, to take classes different from those for which he had been previously responsible or to accept additional children into his classes. The High Court held that a proportionate deduction of 5/36ths of the teacher's salary was a reasonable estimate of the damages incurred. This was based on the number of children excluded by the teacher from the class. The Court noted that no replacement teacher had been employed to teach the children excluded from the class, and that the authority had not been required to meet any claim from parents for failure to educate their children.
When communicating their response to teachers, governing bodies should ensure that it is made clear to them that deductions are made in lieu of damages for their breach of contract. Under no circumstances should deductions be viewed or presented as a penalty for taking industrial action.
There maybe cases where headteachers/principals are also members of the trade unions that are taking action. This means that Governors, probably through the Chair of Governors, will need to carry out the following steps.
Step 1 – Governors should remind staff that they should only attend work when they are fully prepared to work in compliance with their contract and unless they do so they will have no entitlement to pay.
Step 2 – If teachers ignore this request and turn up to work and insist on carrying out their union directive then the advice shown above and via the following link should be undertaken:-
Specific advice on industrial action
What decisions can staff take in relation to the instruction to take industrial action?
Employees who are in a trade union that has balloted and has a mandate for industrial action must make a personal decision on whether or not they wish to support the industrial action. Staff who are members of trade unions that have not balloted for industrial action do not have legal protection if they choose to take industrial action and would be in further breach of their contracts. This might expose them to legal action as consideration can be given to take action against an employee in this category if services would be compromised by their action. It is a quirk of employment law that employees who do not belong to a trade union but decide to take industrial action have the same protection as a colleague in a trade union that holds a mandate for industrial action. Any staff in this group may wish to seek their own legal advice before considering their position.
Requesting a deduction to be made from pay:
We are in the process of defining our advice on appropriate deductions of pay and a process that Schools can use to notify our payroll service. Further advice will be given on this issue in the near future.
It is clear that some action will result in relation to the unions’ directive and there are growing pressures on schools in relation to recent appraisal and OFSTED changes. We are aware of this and if you have any particular queries or concerns please contact HR Direct