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Déjà vu as proposals for agency workers to cover striking staff announced

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Peninsula Team, Peninsula Team

(Last updated )

With the Government launching a consultation on whether agency workers should once again be allowed to cover for striking staff, many will have a strong sense that we have been here before, and you would be correct in thinking so.

On 21 July 2022, laws preventing employment businesses from providing skilled temporary workers to plug staffing gaps as a result of industrial action were repealed and agency workers were able to be used to cover for striking workers. However, on 13 July 2023, the High Court ruled that the Government acted unlawfully when it changed this law, and as a result it has now been quashed and should not be relied upon.

Since 10 August 2023, employment agencies can no longer supply worker to cover a strike where they know this is the case. Those that do could face potential enforcement action under the Conduct of Employment Agencies and Employment Businesses Regulations 2003. Breaches of the law could result in an unlimited fine or a fine of up to £5,000.

Whilst the Government did not appeal the High Court’s decision in July 2023, they have now launched a consultation to seek views on turning it around again.

This consultation is part of the Prime Minister’s action plan to ensure essential public services remain open during industrial action. The other key part of this is the Strikes (Minimum Service Levels) Act 2023 which became law earlier this year with the aim of ensuring that workers maintain the ability to strike whilst giving the public access to the essential services they need.

The Government has now laid three sets of draft regulations before Parliament for approval which sets out the proposed minimum service levels:

  • On a strike day, Border Force should be able to deliver border force security services without relying on cover from other parts of the civil service or armed forces.
  • For train operation services and light infrastructure services, including trams, undergrounds, and metros, the proposed minimum service level is 40% of the operator’s timetabled services during the strike. For heavy rail infrastructure services (track and signalling) the minimum service level is a list of priority routes operating between 6am and 10pm, including certain infrastructure within a 5-mile radius of the listed priority routes.
  • For NHS Ambulance services, some types of calls, including emergencies, must be answered, and triaged as if strikes were not taking place, and a response must be organised for person with a life-threatening condition or illness.

The minimum service levels for the ambulance service looks to have the greatest impact as it is estimated that 80% of staff will be required to work to provide the proposed level.

The regulations and the draft Code of Practice which the Government has drafted both will need approval by Parliament before they can take effect. The Code of Practice sets out the reasonable steps trade unions should take to ensure their members comply with work notices and help to ensure that the minimum service levels are met.

If a trade union gives notice to an employer of strike action, which relates to the services covered by the minimum service level, once in force, that employer can issue a work notice to the trade union ahead of the strike action, to specify the workforce necessary to meet the minimum service level for that strike period. They must consult with the relevant union on the number of persons and the work specified in the work notice and take its views into account before issuing the work notice. The Government has, therefore, also published guidance for employers, trade unions, and workers on the issuing of these work notices.

The Government has proposed for these minimum service levels to be in place before Christmas.

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