1. TACKLING INDUSTRIAL ACTION
IN THE EDUCATION SECTOR
Mary Siddall and Ben Power
Springhouse solicitors

2. Is strike action lawful?
• Industrial action has ‘immunity’ from legal
claims if it meets specific requirements

3. Prohibited Industrial Action
• To enforce a closed shop
• To support workers taking ‘unofficial industrial
action’
• Secondary industrial action
• Unlawful picketing

4. Is picketing lawful
• Can be an issue in education, eg disruption of
graduation ceremonies, governors or council
meetings, protests at school or college gates
• Will be lawful if at employees’ own place of
work and designed to persuade others not to
work or communicate information about the
dispute
• Will be unlawful at another’s place of work

5. Guidance on picketing
• See ACAS Code of Practice on Picketing
• Possibility of an injunction to restrain unlawful
picketing? See Gate Gourmet case

6. Picketing v peaceful protest?
• Distinguish picketing from ordinary right to
peaceful protest
• Permission to enter onto premises?
• Is a policy needed to govern protests on
campus, to cover both industrial action and eg
protests against visitors?

7. Balloting requirements
• Industrial action that is unsupported by a
properly conducted ballot will be unlawful
• All members who may be induced to take part
in industrial action should be balloted

8. Notification Requirements
• The Union must give the Employer
– 7 days notice of intention to hold a ballot
– A copy of the ballot paper, 3 days in advance

9. Notification requirements (cont)
• Notification of the result of the ballot as soon
as reasonably practicable
• 7 days notice of industrial action

10. Employers conduct during a ballot
• Employers can write to employees:
– Encouraging them to vote ‘no’
– Describing the impact of industrial action eg on
students, exams etc
– Reminding them that employees could lose pay
– Avoiding any detriment on grounds of trade union
activities etc

11. Preparing for strike action
• What can an employer do in anticipation of
strike action?
– Contingency plans
– Asking staff if they are/intend to be on strike
– Making clear what is expected of staff eg on a
‘work to rule’

12. Pay for workers on strike
• No obligation to pay striking workers
• No obligation to accept partial performance if this amounts
to a breach of employee’s contractual duties – make this
clear to employees
• What are the contractual duties?
• Partial pay for partial performance? Examples are:
• Deduction of 5/36ths where the teacher refused to teach 5
extra children
• Deduction in respect of time that a teacher would have
spent covering a colleague’s class
• Withdrawal of goodwill – no deduction if no breach of
contract

13. Are workers participating in strike?
• Judge by what they do not what they say
• Ask for evidence of sickness and demand
holiday is booked?
• Employee who gives good reason for absence
but who turns up on picket line or associates
himself with strike can be treated as striking

14. Strikes and dismissal of staff
• Employers can dismiss workers who are
participating in unofficial industrial action ie
not authorised by TU – a ‘wildcat strike’.
• Employees are protected if taking part in
official, protected industrial action
• If the action is official, but unprotected, they
will have an unfair dismissal claim if there is
dismissal followed by ‘selective reengagement’.

15. Trade Union Reps
ROLE OF TRADE UNION REPRESENTATIVES
NB in general these rights apply to the
representatives of recognised trade unions
(save for right to be accompanied, where an
employee can always bring along a TU rep in
place of a colleague)

16. Right to be accompanied
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Colleague or accredited trade union rep
Right to speak
Right to ask questions
No right to answer questions
Can seek adjournment for up to 5 days

17. Time off for trade union activities:
representatives
This falls into a number of different categories:
• Union representatives – right to reasonable time
off to carry out union duties
• Health and Safety representatives – right to time
off to carry out their functions
• Union Learning representatives – right to
reasonable time off in relation to training
functions
These are rights to paid time off, and include the
right to attend relevant training

18. Time off for trade union activities:
members
Members of recognised trade unions are
entitled to unpaid time off to participate in
trade union activities eg
• Attending workplace meetings
• Voting in TU elections
• Meeting full time officers

19. Providing facilities
ACAS code of practice recommends the
provision of facilities for trade union activities eg
meeting rooms; noticeboards; confidential areas
for discussions with individuals; telephone an
email; and in some cases dedicated office space

20. Deciding on what is reasonable time
off
• Use of agreements
• ACAS Code of Practice

21. Detriment and dismissal
A worker has the right not to be subjected to
any detriment:
• on grounds of union membership (or nonmembership)
• on grounds that he was taking part in trade
union activities at an appropriate time
A dismissal on one of these grounds will be
automatically unfair.