Advice to Members

The advice set out in the FAQs below, reflects the EIS Industrial Action Policy. The appropriate section is copied in full below for your information.

It is a well-established trade union principle that members of different trade unions seek to support each others’ legitimate demands and show what solidarity is possible in the circumstances. However, there are important points to be borne in mind when considering how this solidarity can and should be demonstrated.

In situations where EIS members are not involved in a dispute and will not, therefore, have been balloted on industrial action members should report to work as normal. This includes situations where a picket line has been organised at the place of work. It should be remembered that the principal function of a picket line is to persuade members of trades unions who are involved in the dispute not to enter the workplace.

No member should engage in any duty which is normally carried out by staff who are on official strike or engaged in any other official industrial action.

It is important that members are aware of the possible consequences of taking part in unofficial industrial action and these are outlined below:

1. It is possible that members who do not report for work on such occasions will be the subject of disciplinary action. In these circumstances, it must be remembered that failure to attend for work may be regarded as unofficial industrial action and the Institute may be required to repudiate, formally, the action taken.
2. Members, almost certainly, will lose a day’s pay and, again, the Institute will take no action to attempt to recover the salary which has been docked.
3. In the unlikely event of any member being dismissed as a consequence of breaking their contract of employment by taking unofficial industrial action, there is no recourse to Employment Tribunal.
4. It is the EIS view that it is totally unacceptable for teachers to be asked to cover the work of colleagues who have not reported for work (in the context of industrial action). However, members should be aware that any refusal to cover for classes of teachers who have not reported for work could be deemed, in the circumstances, to be unofficial industrial action. Any difficulties should be reported to the Local Association Secretary or Area Officer as appropriate.

While the EIS is under certain constraints as a consequence of the industrial relations legislation, members will be provided with EIS representation should this prove to be necessary.

Frequently Asked Questions

1. Should a school be opened which has members of support staff unions on strike?
2. Can EIS members be asked to carry out work normally done by a striking member of another union?
3. What happens if I am asked to do work that is normally done by support staff during strike days?
4. Can the Local Authority open the school to staff, and close it to pupils?
5. Can EIS members be instructed to teach online from home if their school is closed?
6. Can EIS members teach online from school if their school is open to staff only?
7. Can a teacher be directed to work from home on non-teaching activities during a school closure?
8. Should an EIS member cross a picket line of a support staff trade union?
9. What happens if an EIS member refuses to cross a support staff picket line? Will the EIS support such a member?
10. As a Headteacher/ SMT member/ QIO/ QIM should I be carrying out activities to mitigate the effect of support staff strikes?
11. Can the SNCT “time and place” provision be unilaterally suspended by an employer, effectively forcing all tasks to be done on the school site?

Q1. Should a school which has members of support staff unions on strike be opened?

In the event of strike action by members of premises, cleaning or catering staff, the Headteacher/or Local Authority must undertake a risk assessment, in consultation with all staff and trade union representatives, to ensure the health and safety of staff and pupils on site at all times during any period of industrial action.

In the event that the risk assessment shows that health and safety is compromised, or that the Headteacher decides to close the school, the EIS will expect that all on-site facilities should be closed to pupils and staff. Notice of such should be given by the Headteacher to the Local Authority.

Where a Headteacher’s decision that a school should be closed is not accepted by the Local Authority, or where the EIS membership considers that health and safety would be compromised by the opening of a school, then the EIS Representative should report the situation to the Local Association Secretary or Area Officer as appropriate.

In the event that the risk assessment determines that the school is a safe environment for pupils and staff, and that the EIS H&S Rep/ School Rep/or Branch is in agreement with the risk assessment then the school should be opened.

Q2. Can EIS members be asked to carry out work normally done by a striking member of another union?

There should be no expectation whatsoever placed on members of the EIS to undertake the work of premises staff, cleaners or catering staff or any other member of staff on strike.

Q3. What happens if I am asked to do work that is normally done by support staff during strike days?

If instructed to do so by the Headteacher, you should protest, ask the Headteacher to put the instruction in writing and notify your Local Association Secretary immediately.

Q4. Can the Local Authority open the school to staff, and close it to pupils?

Yes, it can if a satisfactory risk assessment has been carried out, and thereafter, your Headteacher and your H&S Rep/Rep/Branch believe that it is safe to do so.

Q5. Can EIS members be instructed to teach online from home if their school is closed?

No. Our advice to members is based on our understanding of the SNCT, general employment law and the specific education continuity directives that the Scottish Government put in place during the pandemic only, all of which have  been confirmed by independent legal advice that teachers cannot be directed to teach from home (through means such as online teaching).

Q6. Can EIS members teach online from school if their school is open to staff only?

Yes, if the workplace is open then you may be directed to attend school and even deliver your online lessons from school to classes that you would normally teach. (You should not be asked to teach online from home.)

Q7. Can a teacher be directed to work from home on non-teaching activities during a school closure?

Technically not, since the SNCT has a “time and place” clause which states: “All tasks which do not require the teacher to be on the school premises can be carried out at a time and place of the teacher’s choosing”, however, we are content for teachers to agree to work from home during certain school closures on limited duties such as planning, preparation and correction if they are content to do so.

Q8. Should an EIS member cross a picket line of a support staff trade union?

Yes, as EIS members do not have the same protections in law on any strike day as the striking support staff. Members only have protection on the day that their own union calls them out on strike.

Members are advised to stop at any picket line and express solidarity or provide it in practical ways. Many support staff brought out tea and coffee to EIS members when the roles were reversed earlier this year. 

Q9. What happens if an EIS member refuses to cross a picket line? Will the EIS support such a member?

In these circumstances, it must be remembered that failure to attend work may be regarded as unofficial industrial action and the Institute may be required to repudiate (i.e. indicate its rejection of), formally, the action taken. If the EIS did not repudiate the action, it could be liable to be sued for significant damages.

While the EIS could not support such unofficial action, it would support individual members who face unfair or unreasonable sanctions from their employers.

Q10. As a Headteacher or SMT member or ESO/QIO/ QIM should I be carrying out activities to mitigate the effect of the support staff union strikes?

No. This would serve to undermine the legitimate industrial action of another union. As an EIS member, you should seek to support other teacher and support staff trade unionists’ legitimate demands and show all solidarity that is legitimately possible in the circumstances.

Q11. Can the SNCT “time and place” provision be unilaterally suspended by an employer, effectively forcing all tasks to be done on the school site?

No, as with any provision of a contract it cannot be unilaterally varied. Schools can, of course, ask teachers to change their arrangements but that would be a matter for agreement rather than imposition.