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striking the balance

31 December 2013

With union action escalating into strike action recently, schools need to be aware of the action they can take to deal with staff working to rule. HAYLEY PRESCOTT, employment law specialist at law firm Browne Jacobson, advises on how to deal with teachers working to rule

Industrial action is a hot topic at the moment, with two one-day regional strikes already under the unions belts for the autumn term 2013. The national strike has been postponed by the unions (note: not cancelled), following Michael Goves confirmation that he is willing to meet the unions. Running in the background to these very public strikes is the work to rule action that the NUT and the NASUWT have been instructing their members to take since September 2012. This can be much more disruptive than the occasional one-day strike.

The unions instructions have recently been updated, instructing members not to participate in any arrangements for the implementation of any pay policy which does not conform to the unions pay policy checklist. This places schools in a very difficult position. Schools are under a duty to clearly link teachers pay progression to their performance. Many schools do not believe that strict adherence to the union checklist is the best approach to implementing performance related pay (PRP).

Breaches of contract

So the question is: how can schools legitimately deal with teachers who are working to rule and who are refusing to engage with the schools policies? Michael Gove has stated that teachers following the unions instructions are highly likely to be in breach of their contract and therefore, depending on the circumstances, heads can reasonably deduct their pay. The significant words are depending on the circumstances.

When does a breach of contract occur? Unhelpfully, it will depend on the particular circumstances of each school, and it is advisable to take advice before taking action.

If a teachers contract of employment incorporates the School Teachers Pay and Conditions Document (STPCD), a breach of the STPCD is a breach of contract. In addition, if an instruction directs a teacher to act in contradiction to the terms of his or her contract, they will again be in breach of contract. All employees are also under a duty to serve their employer faithfully, which includes following reasonable, lawful instructions (even if those instructions are not contained within their contract). If a teacher fails to follow reasonable instructions he or she will be in breach of their contract.

The instructions to refuse to be observed for more than three hours per year, and to participate in PRP, are breaches of the duty contained within the STPCD to participate in arrangements for appraisals.

If you want to tackle work to rule, you have a number of avenues open to you. You could deduct pay proportionate to the partial performance. If the issue is refusal to engage with lesson observations, depending on your policy, you may be able to inform staff that if they are unable to evidence performance as required under the policy then it is likely that they will not satisfy the criteria and you will not be able to award a pay increase.

Knowing your options can help when facing difficult choices and taking tactical decisions while this phase of industrial action continues.This article was first published in Education Executive.

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