Whilst there is no clear legal definition of industrial action, but it is best described as a concerted action taken by employees against their employer and thus Working to Rule, does constitute industrial action.
Almost everyone working in education does far longer hours and greater workload than laid out in their contract, thus working to rule is done to put pressure on the employer in an attempt to achieve a goal without taking strike action.
Strike action is a breach of contract as employees will collectively withdraw their labour, but it is not always clear whether other forms of industrial action are a breach of contract.
When an employee works to rule, they are working within their contract, but to a minimum e.g. working strictly to a schedule and within their contracted hours, which purposely causes a slowdown in productivity. This is considered less disruptive than other forms of industrial action, and it will make an employee less susceptible to disciplinary action.
If an employee works to rule by refusing to carry out their contractual duties, they will be in breach of contract. As certain tasks undertaken by education professionals may not be expressly stated in their contract, but simply implied, it may not be clear if the employee is in breach of contract if they refuse to do those tasks. Refusal to carry out genuinely voluntary duties is not a breach of contract, but it may nevertheless amount to a form of industrial action.
Whether or not there is a breach of contract, it is important in relation to pay deductions. If an employee is in breach of contract, their pay will be affected. The general principles are that employees are not entitled to pay for the duration of their strike and that an employee taking industrial action short of a strike, but is in breach of contract have:
- no entitlement to pay if the employer decides to refuse to accept a partial performance of the contract and tells employees that that they should attend work only when they are prepared to comply fully with their contract, and until they do so, they will not be paid. The employer has to show that the partial performance of the employee has a fundamental impact on their job to do this; and
- an entitlement to pay where the employer allows them to carry on working and instead makes an appropriate and reasonable deduction from the employee’s pay.
Access our information sheet: Industrial Action: Working to Rule