It is being reported that so-called "sick outs" by teachers in the US state of Michigan, where it is illegal for teachers to strike, led to the closure of 88 out of about 100 state schools for a day last week. Teachers simultaneously called in sick in a staged mass absence from work in response to class sizes and working conditions.  

An application for a restraining order against striking staff was rejected by the US courts due to a lack of evidence that staff had acted in a coordinated way in staying away from school.

The US teachers' union, the Detroit Federation of Teachers, confirmed that it had not sanctioned the sick outs but wanted the public to understand the teachers' frustration. 

It is not unlawful for teachers to strike in the UK and strike action is not uncommon in the education sector. Provided that a lawful balloting process has been followed, employers may be unable to prevent a strike from taking place if members have voted in favour of it. 

While the dismissal of an employee for taking part in lawful strike action will be automatically unfair, employers are entitled to withhold pay from striking employees and this can be a disincentive for those contemplating strike action. The ability for employers to withhold pay can also result in employees calling in sick on strike days while claiming not to be on strike so as to avoid deductions from pay. 

What action should employers take?

Employers should consider in advance of any strike action how they will deal with employees who call in sick on strike days particularly those who offer enhanced sick pay, for example requiring a medical certificate for one day’s sickness absence even though this is likely to depart from your normal sickness absence reporting procedures (which typically provide for self-certification in the first seven days' sickness absence) and/or a referral to your occupational health provider (bearing in mind, of course, the associated costs of this course of action). It will be important to ensure that any departure from your standard sickness absence reporting procedures is carefully communicated to employees prior to the intended strike action. 

Employers should also be mindful of the forthcoming changes to the Trade Union and Labour Relations (Consolidation) Act 1992 proposed in the Trade Union Bill 2015 which provides that workers in important public services (which includes education of those aged under 17) will only be able to take industrial action if, in addition to the amended 50% turnout requirement, at least 40% of those entitled to vote have voted in favour of the action.