From education to employment

Government set to introduce new legislation to allow temporary agency staff to cover striking workers

Jenny Arrowsmith is a Partner in the Employment Team at Irwin Mitchell

Teaching unions have warned that their members, who are struggling with unsustainable workloads and the mounting cost of living crisis, are poised to join strike action in disputes over pay. Unions have  said that they’ll ballot their members for industrial action if the government does not response to concerns over high workloads and their pay demands aren’t met. 

What is the government proposing to do?

In an attempt to limit the impact of strike action on the wider economy and society, the government has unearthed its 2015 manifesto pledge to lift restrictions which prohibit employment agencies providing temporary staff to provide cover for striking workers, or colleagues covering for them. 

Hasn’t the government previously consulted on this and then rejected the idea? 

Yes. In 2015 it launched a consultation on reforming, what it called, the “nonsensical restrictions” on using agency staff in this way as part of a wider trade union reform package. It decided not to go ahead with it.

What does the law currently say? 

The recruitment sector is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the ‘Conduct Regulations’). Currently Regulation 7 of the Conduct Regulations prohibits employment businesses from providing agency workers to cover the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, or to cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action.

Any agency who breaches these rules commits a criminal offence. And, employers who use agency staff can be charged with aiding and abetting that criminal offence.

How soon will these changes come into force? 

Very soon. The draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (Draft) has been approved in the House of Commons and will be voted on in the Lords on 18 July. The Regulations will come into force the day after it is approved by both houses.

Will allowing agency staff to cover striking workers minimise disruption  to the FE sector?

The proposed changes could minimise disruption in some industries, but these changes are unlikely to have a significant impact on the FE sector where there’s already a shortage of supply teachers and other suitably qualified staff. The government (sort of) acknowledges this and has made it clear that employers will remain responsible “to hire cover workers with the necessary skills and/or qualifications to meet [their] obligations”. 

Schools and colleges across England are already reporting difficulties in retaining and recruiting teaching staff and the idea that there’s a plentiful supply of skilled agency workers just waiting to fill gaps is fanciful. And, even if there is a pool of agency staff available, would they choose to cross a picket line if they can pick and choose where to work?

You’d expect unions to object to these proposals. But, the REC (which is one of the UK’s largest professional bodies representing the recruitment industry) has also rejected it in “the strongest possible terms”. It believes that allowing agency staff to provide temporary cover could “prolong the conflict and inflame tensions” It has issued a joint statement with the TUC union which you can read here.  

The REC has asked the government to re-think its strategy and, instead, concentrate on trying to resolve industrial disputes. 

Negotiate to avoid strikes

Strikes are designed to cause disruption and to bring employers back to the negotiating table. They are costly, can severely impact on the quality of education provided and can damage your reputation. 

Negotiations often break down where there is a lack of trust between the parties. If your relationship with a recognised union/s is fraught and bad tempered, it will be difficult to reach agreement. Although a lot will depend on what has happened in the past, you should be able to improve your relationship with a union (even if you can’t ultimately agree terms) if you improve communication. 

Try and avoid using “management speak” or euphemisms to describe what you intend to do. Use plain English and set out clearly why you have arrived at the proposal in issue and explain any other options you have considered and why you have rejected these. This will help you to avoid looking as though you’ve made a “knee-jerk” response or that you’ve got a hidden agenda. 

You may also need to change who negotiates on your behalf (and ask the union to do the same) if their relationship is so bad, it’s getting in the way of productive dialogue. 

Using pooled staff

Further Education settings faced with industrial action can already use pooled staff that they employ directly to cover for striking employees. 

In addition they can:

  • Move existing employees from other classes or departments to cover for striking employees: this might be inflammatory but is not unlawful.
  • Continue to use any agency workers already working for them before strike action was announced for the original purposes they were engaged. But, they should not be re-allocated to the duties normally performed by colleagues taking part in industrial action.
  • Replace any agency worker who leaves provided the replacement only does the same work of the departing worker. 

How easy is it for those in the Education Sector to strike?

It’s much more difficult for most people engaged in schools and colleges to strike than it used to be. The government introduced new laws in 2017 which imposed restrictions on trade unions and their members as to how and when they could take industrial action. The threshold for those in the public sector is high; at least 50% of eligible union members must turn out to ballot and, of those, 40% must support strike action.

However, workers generally only strike if all negotiations have failed – not least because they don’t receive any pay from their employer for any day they are on strike. 

Jenny Arrowsmith is a Partner in the Employment Team at Irwin Mitchell

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