Government plans to impose minimum service levels (MSLs) during teacher walkouts would put schools at risk of legal challenge for undermining the right to strike, according to multi-academy trust leaders who responded to a Confederation of School Trusts (CST) survey.
The vast majority (94 per cent) of the CST members who responded said they were concerned that the proposed regulations would fall foul of the European Convention on Human Rights (ECHR).
CST has raised the same concern in its response to the government consultation on its proposed MSL plans for schools, stating the move could leave trusts “on the frontline of potential legal challenges”.
In a nine-page response to the consultation sent to the DfE today and shared with Tes, CST said that, as the proposals stand, they are “potentially illegal and discriminatory, creating significant legal liability for trusts as employers, with all the associated cost, workload and disruption that this entails”.
It added that “the cost of defending against these legal challenges comes at a time when schools are already experiencing extreme financial hardship”.
“There is a strong argument that the proposed regulations illegally undermine the right to strike under Article 11 of the European Convention on Human Rights and the Human Rights Act 1998,” the response states.
CST also said the timing of the consultation process was “in direct contravention of the DfE’s stated intention to reduce workload in schools”.
It states that the MSL impact assessment published by the government just before Christmas “makes no mention of the cost and workload associated with potential legal risks nor those associated with the massive administrative workload built into the proposed MSLs”.
The organisation is concerned that trusts would be required to carry out risk assessments and consultations in every workplace for every strike scenario, warning this could be an “enormous new burden on trust and school leaders”, especially those working in smaller trusts.
The DfE’s plans to keep up to around three in four pupils in schools during strikes as part of its minimum service level plan were first revealed by Tes last year.
CST is not the only organisation to raise concerns over the plans. The general secretary of the Association of School and College Leaders, Geoff Barton, told Tes last year that the plan is likely to end up being challenged in the High Court.
Avoiding strikes ‘best way to minimise disruption’
In the survey of CST members, designed to help shape its response to the consultation, almost all of the 582 respondents (99 per cent) said they believed the best way to minimise further disruption to pupils’ education was to maintain good industrial relations and to seek to resolve any disputes promptly.
And 94 per cent said they were concerned that the proposed regulations could further undermine recruitment and retention of teachers, leaders and support staff.
CST revealed in its letter to the DfE today that it wrote to the education secretary Gillian Keegan on 4 December to raise several questions with the government, including whether it was satisfied that school staff would be able to exercise their Article 11 rights if the minimum service levels were imposed.
However, it is still waiting for a response.
Plans put employers in direct conflict with staff
CST has also raised concerns about the considerable impact the measures could have on the wellbeing of its members, at a time when concern about mental health in schools is already fraught.
It said the DfE would be “hardpressed” to claim that the proposed regulations “would not increase already unsustainable stress levels among school and trust leaders”.
It also references the House of Commons research briefing published earlier this month that concludes that the “large number of employers in the education sector would...likely make minimum service arrangements difficult and very burdensome to implement”.
CST has over 1,000 members. It said that more than one leader per member organisation may have responded to the survey.
A Department for Education spokesperson said it is consulting on the delivery of MSLs to ensure that “children and young people are not disadvantaged because of any future strike action”.
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