New proposals for minimum service level (MSL) laws in colleges when staff are on strike would further “inflame” tensions between colleges and unions, leaders have told FE Week.
The Department for Education launched a consultation last week with proposals that would allow colleges to require staff to work during strikes so priority groups of students can still attend classes.
One college principal told FE Week the plans could wreck carefully managed relationships between unions and colleges, which have been under strain in recent years due to industrial disputes over low pay and workload.
Education secretary Gillian Keegan first floated MSL last month and opened talks with unions for a voluntary agreement that would avoid legislation.
However, “not enough progress” was made, according to DfE, so powers under The Strikes (Minimum Service Levels) Act 2023 will now be used to bring in regulations to limit disruption in education on strike days.
The department said that ten days of strike action by the University and College Union (UCU) and nine days by the National Education Union (NEU) took place in further education in the last academic year.
Jo Grady, the general secretary of UCU, said the proposals were a “transparent political ploy designed to create a dividing line in advance of the general election”.
“There is no call for minimum service levels from within the sector. We are disappointed at the bad faith the government has shown in pressing forward with this consultation on curtailing our members’ right to strike. The engagement up to now has been a sham and this consultation is full of loaded questions,” Grady added.
Further education and sixth form colleges will be in scope of the new rules, as well as the specially designated institutions. Independent training providers and specialist post-16 institutions are not in scope as they are deemed at low risk of strike disruption.
Keegan said: “Whilst I know many schools and colleges worked really hard to keep children and young people in face-to-face education during strikes, we must make sure that approach is applied in every school [sic], in every area of country.”
Colleges choose minimum staffing levels
Under the proposals, college leaders can choose to issue a work notice ahead of a strike which would list the staff needed to deliver a minimum level of service.
Staff that can be named in a work notice can include leadership, teachers and lecturers, teaching assistants, safeguarding leads, administration staff and other non-teaching staff.
Janet Smith, principal and chief executive at Nottingham College, which until recently had regular strike action, said issuing work notices would be “inflammatory”.
“I think it would be very difficult to do and it would be inflammatory. We work very, very hard to build a good relationship with our staff and with our unions … and it’s partly through fostering and nurturing those relationships, even if we are looking at things through a different lens at times, that we actually head off strike action. I think that’s more effective than trying to strong-arm people into work.”
The regulations will not tell college leaders how many staff they must direct to work during strikes, but they will specify which groups of students should be protected from disruption.
Bill Watkin, chief executive of the Sixth Form Colleges Association, questioned how college leaders will be held to account under the new rules.
He said: “It’s one thing to say that college leaders have the freedom to choose whether to issue a work notice, but they are also told that they are responsible for ensuring the delivery of a minimum level of service. If leaders choose not to issue a work notice for a particular reason, but then fail in their duty to deliver, how will they be held liable?
“At least this consultation gives employers, who have to manage the tension between a right to strike and the imperative to deliver an education without disruption, and who have not previously been invited to contribute to the debate, an opportunity, at last, to express their views.”
Priority student groups
The department is proposing that young people defined as vulnerable, students due to take exams and assessments (excluding apprenticeship end-point assessments), and children of critical workers be prioritised.
Students that are looked after by their local authority, are aged 25 and under with an
EHCP, have a child protection or child in need plan, and/or receive special educational needs support will count as vulnerable under the MSL regulations.
Also on the priority list would be students due to take exams or formal assessments in the same academic year strike action takes place. This includes assessments for GCSEs, A levels, T Levels and other vocational and technical qualifications.
Apprentices, however, will not be included in this priority cohort. This is because strike action has a “limited risk” to the delivery of end-point assessments.
The final group of students to be prioritised under MSL rules will be children of critical workers, such as health and social care workers, transport workers and certain education roles.
But for colleges to prioritise the attendance of those students, it is proposed that both parents or guardians must be critical workers, or that a single parent in a household is a critical worker.
For students not prioritised for attendance on a strike day, the DfE said it would “expect every effort” to provide teaching remotely.
The consultation closes on January 30, 2024.