This is the guidance issued by the Local Government Association.
Members of the NASUWT and NUT have voted for joint industrial action short of a strike, to commence on 26 September 2012 and 3 October 2012 respectively. The action is on the basis of:
workload pressures: damaging teachers’ health and threatening educational standards;
pensions: imposing unfair contribution increases and changes to pension ages;
pay: continuing the pay freeze and proposing local pay and further performance related pay;
conditions: attacking national terms and conditions of service, including through the academisation of schools;
inspections: creating workload and stress through punitive and frequent inspections; and
job security: increasing job losses through funding cuts and curriculum reforms.
On 26 September the NASUWT’s previous action short of a strike, which began on 1 December 2011, ceased.
Members of both unions were balloted on their willingness to take both strike action and also industrial action short of a strike but the action proposed so far is only action short of a strike.
Both the NUT and the NASUWT have produced written instructions and guidance for their members. Both sets of instructions are the same but the guidance varies very slightly. To fully understand the action that teachers may engage in it is important to read this advice.
The LGA’s starting point in respect of this action is that the majority of school teachers should be and will be in receipt of their contractual entitlements and so will have no reason to seek to engage in the action. If there are examples of clear breaches of the School Teachers’ Pay and Conditions Document then, quite clearly, the LGA would not endorse this. We would encourage employers to help head teachers clarify the issues and resolve the situation as soon as possible.
However, it is our view that the actions which the NUT and NASUWT are inducing their members to take are likely to constitute, in many cases, a breach of contract due to the action amounting to partial performance. This is because in many cases teachers will be refusing to carry out particular duties unless the school meets certain demands where either the employer will already be meeting their obligations in respect of the contract (notwithstanding that the teacher may not agree) or, even where the employer may have failed to meet a term of the teacher’s contract of employment, the action taken by the teacher is disproportionate in light of the teacher’s implied duty of good faith.
Employers should bear in mind though, that refusing to carry out a duty that is specifically precluded within their contracts (e.g. refusing to carry out lunchtime supervision) is unlikely to be a breach a contract as it is not the same as refusing to carry out particular duties unless the school meets certain demands (e.g. a teacher refusing to teach because they have not received their full PPA entitlement), as outlined above.
Where a NUT or NASUWT member chooses to engage in this action it will be the head teacher who will need to make an initial judgement, based on the particular circumstances, about whether or not the teacher is in breach of contract and, if so, the extent of the breach. The National Association for Head Teachers (NAHT) has prepared advice for its members. This advice is helpful in considering the legitimacy of each of the various aspects of the proposed action.
The role for local authorities, in particular in their capacity as the employer in community and voluntary-controlled schools, will be to assist head teachers in considering whether there has been a breach of contract. They are likely to be called upon to advise on whether the school can and should accept any partial performance and the extent of any pay deduction. In this respect, LGA advice on dealing with industrial action, including breach of contract and deductions from pay can be found here.
Page Published: 10/10/2012