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Unions mount legal challenge to strike-break law as teaching staff consider pay walk-outs

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A legal challenge is being mounted against a new law that allows employers to bring in agency workers to help break strikes.

It comes as hundreds of thousands of teachers and support staff are being balloted over potential strike action in response to this year’s pay settlements.

The new law applies in England, Scotland and Wales and came into force in July. It means that organisations “most affected by industrial action will be able to call upon skilled, temporary staff at short notice to plug essential positions”.

It involved a change to the so-called Conduct Regulations 2003, which previously protected employees' right to strike and ensured agency workers could not replace them.

In announcing the new law, the Department for Business, Energy and Industrial Strategy (DBEI) specifically cited education as an example of a sector where the new law could be applied.

Both NASUWT and UNISON announced this week that they will be pursuing legal challenges. Meanwhile, the GMB and National Education Union (NEU) are involved in a similar challenge that is being mounted by the Trades Union Congress on behalf of 11 unions.

The unions argue that the new law violates fundamental trade union rights, including the right to strike.

Speaking this week, NASUWT general secretary Dr Patrick Roach said that the law also undermines a long-standing national acceptance that agency workers should not be used to replace those on strike.

UNISON meanwhile is arguing that the change is “unfair and based on unreliable evidence”. Its legal team is aiming to prove that the government has ignored Article 11 of the European Convention on Human Rights, which protects the right to freedom of association and international labour standards on the right to strike.


Teachers’ pay ballots

The legal challenges will come just as the NEU has said it will ballot its 250,000 members this term over the pay proposals. NASUWT is also speaking to its members about action over pay. GMB and UNISON, which both represent school support staff, are also consulting members.

At the end of July, the School Teachers’ Review Body published its recommendations for pay in both 2022/23 and 2023/24 (STRB, 2022).

The DfE has accepted the in full the proposals for 2022/23 and has said it will return to the usual STRB annual timeframe for the pay setting process for 2023/24 (DfE, 2022)

It means that school leaders and experienced teachers (M6, U1, U2, U3) there will be a 5% increase from September 2022. Rises will be higher for newer teachers, with an 8.9% rise for M1 tapering down to a 5.5% rise for M5 in September 2022.

The STRB had also recommended a 3% increase for school leaders and experienced teachers from September 2023 and a 7.1% rise for M1 tapering to a 3.7% rise for M5 (see tables). However, the government is reserved judgement on these proposals.

The higher increases for new teachers would achieve the government’s pledge of increasing minimum starting salaries to £30,000 by September 2023.

Pay proposals: The STRB's pay proposals for September 2022 (top) have been accepted in full by the government. However, ministers are reserving judgement on the STRB proposals for September 2023 (source: STRB, 2022)


Meanwhile, school support staff have been offered a flat pay rise of £1,925 for 2022/23 by local government employers, which would equate to as much as 10% for lower paid employees.

However, inflation is running at more than 10% and it is anticipated that it will hit 12% or 13% later this year.

The pay rises come after years of pay restraint which has seen pay fall in real-terms between 2007 and 2021 by 8% for upper pay scale and 4% for main pay scale colleagues (Cribb & Sibieta, 2021).


The gloves are off

The government’s business secretary has 21 days following the case being lodged at the High Court (on September 13) to respond.

Dr Roach – who had campaigned for a 12% increase this year for teaching staff – said the new regulations are seeking to “undermine and weaken the rights of all workers, including teachers, to take legitimate industrial action”.

He added: “The government is seeking to prevent workers taking collective action to defend their jobs, pay and working conditions in direct contravention of its international commitments and obligations. The right to strike is enshrined in international law.

“If the government was serious about improving workers’ rights, it would be focused on improving the pay and working conditions of all workers, including agency workers, tackling the cost of living crisis, prohibiting the use of zero hours contracts, and ensuring that agency workers have the rights of all other workers from day one.”

Dr Roach set out his case for a 12% rise in a recent article in SecEd. He wrote: “Continued attempts to freeze pay and to deliver below-inflation pay awards will be met with an outpouring of anger from teachers, and rightly so.” (Roach, 2022)

If the legal challenge is accepted, then it is likely all the arguments will be heard together.

UNISON general secretary Christina McAnea said: “Employees striking for better wages during a cost-of-living crisis is not the problem. Ministers should be rolling up their sleeves and helping solve disputes, not risking everyone’s safety by allowing the use of inexperienced agency workers.

“Changing the law in such a hostile and unpleasant way makes it much harder for workers to stand up to dodgy employers. It also risks limiting the impact of any legal strike.”