Minimum service levels during strike action are being introduced across the schools and education sector despite vehement opposition from teaching unions. Personnel Today examines the rationale for MSLs, the minimum service levels that are likely to be set and whether employers will have appetite to impose them.
The Strikes (Minimum Service Levels) Act passed into law in 2023 in six broad public sectors including education. Unlike in the rail, health and fire services, the Department for Education invited the teaching and university unions to agree voluntarily how MSLs would work in the event of strike action.
All trade unions are vehemently opposed to minimum service levels, so it was of little surprise that officials at the DfE failed to reach an agreement with the teaching unions. Talks collapsed in November 2023 and the government launched a consultation on MSLs for the education sector, which closed on 30 January 2024.
Daniel Kebede, general secretary of the National Education Union, said: “The attempt to impose further restrictions on our democratic freedoms is shameful. This government wants to be tough on strikes, but not on the causes of strikes.”
He added: “The attempt at dialogue was never meaningful. It was disingenuous and cynical. The end of talks was briefed out to the press by Number 10 before the talks ended. Sunak always intended to implement this draconian legislation without consent or mandate.”
Rationale for MSLs in schools
Explaining why the government sought views on minimum service levels for education services, Gillian Keegan, the education secretary, said that in the 2022-23 academic year, 10 days of teacher strikes resulted in over 25 million school days being lost, with up to 200,000 teaching staff striking each day.
“Millions of people were affected by education strikes, and they deserve to have the reassurance that services which are essential to their future will be available to them when needed,” she wrote in the consultation foreword.
“I am therefore committed to putting in place greater protections for children, parents and families in the event of future strike action. We will need to balance the rights of workers to strike with a child’s right to receive an education.”
Which educational establishments will be covered by MSLs?
The government proposes that the following education settings should be in scope of minimum service levels for teaching:
- State-funded academy schools including free schools, special academies, and special free schools and alternative provision academies
- Schools maintained by local education authorities, including foundation schools, foundation special schools, pupil referral units, voluntary aided schools, voluntary controlled schools, community schools and community special schools
- 16-19 academies, including 16-19 free schools and secure schools
- Education settings in the statutory further education sector, including institutions run by further education corporations, sixth-form college corporations
- Institutions designated under section 28 of the Further and Higher Education Act 1992.
It does not propose that the following education settings should be in scope for MSL rules:
- Early years (aside from reception year in the settings above)
- Independent schools
- Independent training providers, non-maintained special schools, and specialist post-16 institutions
- Out-of-school settings, and wraparound childcare providers.
The Strikes (Minimum Service Levels) Act 2023 enables the government to apply minimum service levels across Great Britain, but it recognises that in some cases this will affect employers in services that are devolved. The consultation document says it is engaging with the Scottish and Welsh governments but the first ministers of both Scotland and Wales have pledged not to use MSLs. The Strikes (MSL) Act does not apply in Northern Ireland.
What are the minimum service levels in schools and colleges?
The government is yet to publish its response to the consultation on MSLs or the regulations themselves but we can glean some information on what the minimum level of service could be in the education sector. The Department for Education consultation makes two broad proposals for teaching MSLs.
The first proposal prioritises three cohorts of children and young people:
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- vulnerable children and young people
- pupils and students due to take public exams and formal assessments that academic year, and
- critical workers’ children not old enough to look after themselves (Year 7 and below).
The government proposes that the last group is redefined such that “critical workers” are those people who work in the six broad sectors that MSL legislation applies to (healthcare, education, fire and rescue, border security, transport and nuclear decommissioning), and people who are unable to strike (police, armed forces and prison officers).
It also proposes that the MSLs would only apply to pupils and students where both parents, carers or guardians are critical workers, or for critical workers in a single-parent household.
An impact assessment of this first proposal estimates that it would see 43% of pupils needing to attend on a strike day.
The second proposal, a “hybrid approach”, goes much further, and would allow all primary school children to attend school on a strike day, as well as those children in the first proposal in secondary schools and colleges.
Given the critical role that education plays for children’s development, the government says there is a strong case to support a larger group of children, particularly younger pupils aged between 4 and 11, through minimum service levels.
The impact assessment of this second proposal estimates that it would see 77% of pupils needing to attend on a strike day.
For pupils not prioritised for attendance on strike days under either proposal, the Department for Education says it would expect every effort to be made by schools to put in place appropriate arrangements for remote education, in line with non-statutory guidance.
For strikes lasting five or more days, the DfE proposes that schools and colleges use rotas to ensure that all children and young people receive some face-to-face and on-site teaching, in addition to any remote education.
It will be up to schools and colleges to determine their specific workforce requirements to deliver a minimum service level under either proposal, and the consultation invites evidence on the number and breakdown of staff schools believe would be required.
Which roles could be affected by MSLs in schools and colleges?
The government expects that the following roles could be subject to work notice: headteachers and principals, teachers and lecturers, teaching assistants, special educational needs co-ordinators (SENCOs), teaching and learning support staff, designated safeguarding leads, administration staff, and other non-teaching staff such as caretakers, technicians, cleaners and kitchen staff.
Minimum service levels in higher education
The Department for Education consultation did not propose a specific minimum service level for universities and other higher education institutions but did seek views to form a better understanding of the impact of industrial action.
It said that if it were to pursue plans to lay regulations for higher education, it would consider further consultation on detailed MSL proposals.
Options on one question around mitigating the most adverse impacts of strike action sought whether this should focus on exam years, final year students, students studying subjects which have minimum contact hours, and students studying subjects that lead to critical worker professions.
Are employers likely to use minimum service levels?
The Strikes (Minimum Service Levels) Act and any regulations resulting from the Department for Education’s consultation to impose MSLs in schools and colleges would provide the option for employers to issue work notices to staff, obliging them to work during strike action. However, it does not require them to do so.
There are three reasons why, despite minimum service levels’ likely introduction to education services, they still might not see the light of day in teaching.
1. Political opposition against MSLs
The Welsh and Scottish governments have made it clear that they are opposed to minimum service levels in any form, and the legislation does not apply in Northern Ireland, so it is likely only England where minimum service levels might be used.
But in England, many council leaders and metropolitan mayors have vowed to “do everything in their power” to stop the imposition of MSLs. In November 2023, the mayors of London, Greater Manchester, Liverpool, West Yorkshire, South Yorkshire, Bristol and North of Tyne, and council leaders of Birmingham, Cardiff, Glasgow, Leeds, Liverpool, Newcastle, Nottingham and Sheffield issued a statement against the use of minimum service levels.
2. Unions will escalate action when MSLs are imposed
The first opportunity for minimum service levels to be imposed came in January 2024 when train drivers’ union Aslef called rolling 24-hour strikes at 16 train operating companies. Not one operator imposed the 40% minimum service levels set out in the MSL regulations for the rail sector.
When one, the government-owned LNER, showed signs that it might use the legislation, Aslef announced an additional five-day strike. LNER then informed Aslef it would not impose MSLs, and Aslef cancelled the extra five days’ action.
3. Employers will not want to use MSLs
Given that there are more than 24,000 schools in England, some may choose to impose MSLs when facing strike action. However many employers, including England’s largest academy trust, are vehemently opposed in principle. United Learning, which oversees more than 100 schools nationwide and employs over 10,000 people, has said it will not impose MSLs and issue work notices.
In its response in January to the DfE consultations, United Learning said: “The legislation places no duty on employers in schools to implement a minimum service level. In that context, whilst the legislation provides that an employer may give a work notice, it is inconceivable that any employer will in fact choose to do so.
“School leaders recognise that issuing a work notice would be inflammatory, damage industrial relations and harm their image as an employer throughout the sector. It would make it impossible to retain the goodwill and discretionary effort of staff; harder to retain staff; and the reputational impact would make it harder to attract new staff…
“We think that the policy in its current form is wrong in principle and in its details and likely to be self-defeating in practice. We will not be issuing work notices if the policy goes ahead as is.”
What has been the reaction to MSLs in education?
Leora Cruddas, chief executive of the Confederation of School Trusts, said: “We have several concerns about this policy. In the context of a severe recruitment and retention crisis, significant challenges in the school sector and delicate industrial relations, we are concerned about the potential impact of such a policy. We are worried about whether the proposal would be implementable for a number of reasons on which we will now seek advice.”
Carl Parker, head of industrial relations for the Association of School and College Leaders, said: “The introduction of MSLs in education will do much more harm than good. These regulations effectively remove the right to strike for some staff and will damage relations among others. As well as being profoundly illiberal, MSLs risk exacerbating the recruitment and retention crisis by watering down workers’ rights and further erasing the goodwill that exists within the profession.
“None of this serves the interests of children and young people. The best way to protect pupils in circumstances where strike action may occur is for constructive dialogue to take place at the earliest opportunity and within the framework of an adequately funded education system. Riding roughshod over the rights of employees is the response of a government that has lost the argument.”
In its response to the DfE consultation, the largest teaching union, the National Education Union, said: “The NEU is wholly opposed to the introduction of any minimum service levels in education settings across England, Scotland or Wales…
“The bureaucratic MSL regime proposed is draconian, unnecessary and would be unworkable and counterproductive in the education sector. The proposals represent an attack on the democratic rights of education workers.”
The NASUWT also objects strongly to the proposed secondary legislation introducing MSLs in education. “The union maintains its unequivocal position that the Strikes (Minimum Service Levels) Act 2023, which facilitated MSLs in the education sector, is a grudge-bearing attack by the government on the fundamental rights of teachers and other working people to protect their rights at work and to secure decent living standards,” it said in response to the consultation.
The National Association of Head Teachers is calling for the government to retract the proposals and enter meaningful negotiations with education unions after it abandoned talks last year. Paul Whiteman, NAHT general secretary, said: “The government’s proposals are a hostile attack on the basic democratic right of workers to withdraw their labour.
“Strike action will always be a last resort for dedicated education professionals. Sadly, however, it is sometimes the only way to engage tin-eared governments and employers in serious talks about issues which may not only affect their working conditions, safety and livelihoods – but also their ability to offer the education all children deserve.
“These proposals will not help to prevent industrial disputes but will make it even harder to resolve them and for dedicated school staff to act when they fear education is being devalued. If that happens, ultimately it is children who will suffer.”
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