NAHT Supplementary Advice
The NAHT issued advice to members dated October 2012 in relation to the NUT/NASUWT dispute with the Secretary of State for Education (see related items to the right). What follows is supplementary to, and should be read in conjunction with, that advice.
It is important to recognise that the current dispute is with the Secretary of State rather than local employers or schools. This makes it impossible for individual leadership teams to find a solution to the action by themselves.
For the most part leadership teams have balanced well the right of trade unions to take action and the need to deliver quality education to pupils. Against that backdrop most schools have remained functional. In a very limited number of schools matters have escalated beyond action short of a strike.
The Department for Education (DfE) has now issued guidance to employers and school leaders reminding them of responses they can make to the action under contract of employment
For most of the 25 instructions to members from the NUT and NASUWT it is the advice of the DfE that, if followed, the action will be a breach of contract. As such the teacher is liable to a pay deduction or to be sent home without pay.
Whilst the advice appears technically correct we have some concerns about the impact of such advice from this source at this point in time. We are confident that the advice is intended constructively, but we would not wish it to be seen as an instruction to impose sanctions without judgement about the context and consequences: what can be done is not the same as what should be done. In any case the guidance is silent on what would be appropriate sanctions leaving that decision, quite correctly, to the employer. This does then put schools in the invidious position of not being party to the dispute but being responsible for imposing sanctions.
The introduction of sanctions for a supposed breach of contract could escalate the dispute. Sanctions may well be appropriate but any escalation of the dispute is likely to be in the form of strike action. A decision about what is in the pupils' interests over the long term is the over-riding consideration.
It may be that relationships in the school have deteriorated to such an extent that leaders have no choice but to impose sanctions to make the point to the teachers involved. Or leaders may have made the assessment that the way in which the action is being pursued in their school is adversely affecting standards and is not "pupil, parent and public friendly" as suggested. If local dispute resolution procedures cannot be used to encourage union branches to comply with the “pupil friendly” intention then sanctions may be appropriate.
School leaders contemplating the type of sanctions suggested by the DfE advice should:
First explore possible local resolution.
If that is not possible, ensure that the governing body is fully informed of the situation and the potential consequences of imposing sanctions.
Ensure you have the governing body's explicit support and a written record of that support.
Where the governing body is not the employer make sure that the employer is supportive and again that a written record of that support is made.
If you are being instructed or encouraged by the local employer or governing body to impose sanctions that are in your judgement risky you should:
Write seeking clarification of the actions you are being required to take.
Provide a written explanation of your view. However, you should also confirm that you will follow any reasonable and lawful instruction.
Obtain any instructions in writing.
We recognise the right to trade union action. We equally recognise the right of the government to respond appropriately to such action and, above all, the duty of school leaders to act in pupils' interests. However, it is not reasonable for school leaders to be expected to solve a dispute that is not of their making. School leaders should act in accordance with their judgment and values, and make sure to secure the support of the employer.
Page Published: 12/12/2012