As schools prepare to return for September the threat of strike action is hovering in the distance, with some unions already balloting members as concerns around pay come to a head.

The threat of strikes will certainly concern leaders and parents - not least because in the past if teachers went on strike there was little schools could do, as the law prevented schools from bringing in agency staff to cover their roles.

However, in a notable legislative change in July - when schools were gearing up for summer holidays - the government removed this regulation, permitting employers (including schools and colleges) to use temporary agency staff to provide cover for essential roles during periods of strike action.

So what do the changes mean for schools if strikes were to take place?

What do the regulation changes really mean for schools?

Schools have always been able to employ individuals directly on a fixed-term basis to cover the duties of striking employees.

What has changed now though is that schools are now legally able to bring in temporary agency staff to provide cover, which was not permitted before now.

Hiring agency staff means these teachers will have the proper qualifications and DBS checks in place and are used to filling temporary teaching positions, which could make the process more straightforward, quicker and more effective for schools looking for cover.

However, schools should note that if they do intend to engage agency workers, the change in the regulations does not excuse any employer from their broader health and safety rules, and they will still have a responsibility to hire cover workers with the necessary skills to ensure they meet those obligations towards pupils and the wider school community.

We know there are more vacancies in the sector than there have ever been and reliance on agency staff is already at an all-time high - and they can be selective about the schools at which they accept an assignment. Schools will also need to consider the budget implications of this.

While the change to the regulations will certainly help schools plan for how they will deal with strike action and give them another option that may help avoid missed lessons because of closure, it would be naïve to think it presents an immediate solution.

What other planning can schools do?

For schools employing non-agency individuals directly to cover the duties of striking employees, there are obvious regulatory requirements that can take time to comply with. Not least of which is the need to ensure all individuals have the necessary references and DBS checks in place.

For newly appointed staff, schools must obtain a barred list check with an enhanced criminal record check.

For employees transferring from a similar position without a break in service of more than three months, schools must carry out a barred list check and can choose to carry out an enhanced criminal record check if they wish, but there is no requirement to do so.  

Some forward planning can help overcome these hurdles and schools or groups of schools may wish to consider creating a bank of staff who can be used for cover and who already have the necessary documentation in place.

Other options include the use of volunteers, which again requires DBS clearance, internal staff deployment and being more flexible with existing resources - especially within multi-academy trusts or other groups of schools such as federations.

Does the curriculum have to be delivered on strike days?

No - there is no legal obligation to deliver the curriculum requirements on strike days, and therefore schools can organise alternative activities such as sport and enrichment, possibly with the use of alternative agency staff.  

Of course, this won’t avoid possible disruption to a pupil’s learning but it may go a long way to keeping schools open and maintaining good relationships with parents who may otherwise have had to stay at home with their children rather than go to work.

Will the regulation changes have any impact?

A key impact is that schools are fully within the legislation and can be transparent if they need to engage temporary agency workers during times of strikes, which should help to avoid any further disputes around this course of action.

The changes could well be beneficial and it may be that, for example, schools could choose to employ agency staff to specifically deliver to GCSE and A-Level priority groups or avoid closures.

I believe the key driver behind the change in the regulations is ostensibly to help employers plan for, and perhaps avoid, some of the disruption caused by strikes. It is not necessarily “the answer”, but some schools may find it helpful.

It’s worth noting of course that agency staff won’t necessarily want to cross a picket line and work in schools dealing with industrial action. They may prefer to accept a placement in a different school without those challenges.

Schools also have to consider how to maintain good relationships with employees whether they opt to take industrial action or not.

Polly O’Malley is a partner at education law firm Stone King