Minimum service levels for education: government sets out its proposals

The Strikes (Minimum Service Levels) Act 2023 came into force on 20 July 2023 and gives the government powers to make regulations to set minimum service levels in specified sectors (including education) during strikes.  

In the autumn the government said that it planned to introduce minimum service levels in schools and colleges and in November it launched a consultation.

Background

This consultation sets out proposals for a minimum service level (MSL) in schools and colleges. It presents two options for protecting face-to-face education on strike days. 

The MSL would be delivered through regulations which, if implemented, would mean an employer – in this case, a school, college, local authority, or university – could issue a work notice to require individuals to work during strike action in order to deliver a minimum level of provision. 

The case for imposing MSLs

The consultation document states that missing days in education has a clear negative impact on children in terms of their attainment, especially for vulnerable children and young people. Extended absences can also adversely impact their mental health and well-being. The government is also concerned that strike action in schools can disrupt the lives and livelihood of people who rely on their services.

How will a MSL work?

If a union notifies a school or college that it intends to take strike action, the employer will be able to issue a work notice ahead of the strike days to ensure that it can meet the minimum service levels laid down by the government. 

The work notice must name the people the employer wants to work and what they will do during the strike period. It must then serve this on the union at least seven days prior to the strike day. It can make changes to this up to four days before the strike. 

The onus then falls on the union to take ‘reasonable steps’ to ensure that anyone named in the work notice comes into work. The government has published a draft Code of Practice to help unions (and employers) understand what this means and the steps they must take to do to comply with this. 

Which schools and colleges are affected?

State funded education settings including academy schools, schools maintained by local authorities, 16-19 academies, including free and secure schools, and FE sector education settings are all in scope. 

What does the MSL aim to achieve?

The government proposes that schools and colleges should aim to:

• ensure a child’s education can continue as far as possible during strike action, including through remote education where face-to-face teaching is not possible;
• mitigate against further lost education for pupils and students;
• ensure the safeguarding and welfare of vulnerable children and young people;
• allow children and young people to prepare, without disruption, for public exams and formal assessment; and
• maintain the running of the service

Who decides how to meet the MSL in each school or college?

The government says that headteachers and principals are best placed to make these decisions and has said that it doesn't intend to set out specific ratios or percentages they have to apply.

What options are being considered?

The government has set out two options for deciding which pupils and students should attend school or college on strike days:

Option 1: Only vulnerable children and young people, exam groups, and children of critical workers are prioritised for attendance. These are the same groups that were recommended to attend school during the pandemic.

Option 2: All primary school pupils and the same priority groups in secondary and further education settings are prioritised for attendance. This option recognises that younger children are more affected by missing school and need more face-to-face education.

The government also proposes that schools and colleges should use rotas to ensure that all pupils and students receive some face-to-face education if the strike lasts for five consecutive days or more.

Deadline for responses

The consultation ends on 30 January and the government wants to hear from parents, pupils and students as well as from teachers and employers. 

When will the government confirm its preferred option?

We don't know, but it will have to get its skates on to get regulations written and approved by parliament before the next general election. The Labour Party has already said that if wins the election it will revoke the Act within its first 100 days in power.

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