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Agencies object to use of their nurses to cover strikes

Nursing recruitment agencies have opposed government plans to allow agency staff to cover striking nurses and other workers.

The Recruitment and Employment Confederation (REC), which represents nursing and other agencies, issued a joint statement with the Trade Union Congress (TUC) this week warning the UK Government against repealing legislation which prohibits agency staff replacing workers on strike.

“Bringing in agency staff to deliver important services in place of strikers risks worsening disputes and poisoning industrial relations”

Paul Nowak

The two organisations warned that such a move would put agency workers in the middle of industrial disputes and “inflame” conflicts between employers and permanent staff.

Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003, makes it illegal for an agency to supply workers to cover duties performed by another worker who is on, or planning to, strike.

The UK Department for Business and Trade (DBT), in November 2023, opened a consultation on whether to repeal regulation 7. The repeal would cover all sectors including hospitality, retail, construction and, crucially for nursing staff, health.

REC chief executive Neil Carberry said agencies had been “clear” in their opposition to the DBT’s proposals.

“The ban on direct replacement of striking workers reflects global good practice and protects temps and agencies from being drawn into disputes that are nothing to do with them,” said Mr Carberry, whose organisation represents agencies which supply nursing staff to the NHS.

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Regulation 7 has been in force since 1976, save for a period between July 2022 to August 2022 when it was briefly repealed by then-business secretary Kwasi Kwarteng before the High Court ruled this to be unlawful.

Mr Carberry continued: “Removal of the ban does nothing to resolve those disputes either.

“The REC was clear in 2022 that this is a step which only causes problems for businesses and workers in reality – however good politicians think it sounds.”

Paul Nowak, general secretary of the TUC, described the proposals as “unworkable” and “shoddy”, adding: “It’s spiteful, cynical – and it won’t work. Bringing in agency staff to deliver important services in place of strikers risks worsening disputes and poisoning industrial relations.

“Agency recruitment bodies have repeatedly made clear they don’t want their staff to be put in the position where they have to cover strikes.

“It’s time for ministers to listen and drop these plans for good.”

The TUC and REC further accused the DBT of failing to demonstrate how repealing regulation 7 would benefit employers.

The joint statement reads: “We both believe that using agency staff to cover strikes only prolongs and inflames the conflict between employers and their permanent staff.

“It also risks placing agency staff and recruitment businesses in the centre of often complicated and contentious disputes over which they have no control.

“Where a dispute occurs, the focus should instead be on negotiation and resolution to return to a normal service.”

“We believe there is a strong case for this change to help employers to manage any disruption”

Department for Business and Trade spokesperson

Other organisations have also begun to push back against the DBT’s plans.

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Last week, the Equality and Human Rights Commission published a response to the consultation.

The commission, a non-departmental government body, said the UK Government had already made “many changes” to legislation which have had implications on the right to strike.

It raised concerns about claims from the DBT that the repeal would not impede on human rights, claiming the government’s evidence failed to show why the repeal is necessary and proportionate.

Further, it said the government had yet to demonstrate the repeal would not breach article 11 of the European Convention on Human Rights (ECHR), the right to association and peaceful assembly, which protects the right to strike.

The response continued: “No evidence has been presented on the scale of agency worker use during the period between July 2022 and August 2023 when regulation 7 was revoked.

“The absence of records means we are unable to assess the position set out in the consultation paper that repeal will have no chilling effect on workers considering strike action.”

The commission added: “While article 11 rights are not absolute, any interference must be proportionate, justifiable and well-evidenced.

“Our assessment is that the government has not provided sufficient evidence to justify further restrictions of article 11 rights.”

The commission asked the government to produce more evidence that showed human rights would not be breached.

Further, it asked the government to require businesses to report when they use agency workers to cover strikes, to help monitor the impact of the repeal.

A DBT spokesperson said, in response to the challenges to the consultation: “We want to ensure that there is an appropriate balance between the right to strike and the rights of the general public to go about their daily lives and access vital public services.

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“We believe there is a strong case for this change to help employers to manage any disruption, and people expect the government to act in circumstances where their rights and freedoms are being disproportionately impacted.”

When the consultation first launched, the Royal College of Nursing (RCN) also made its opposition clear.

Joanne Galbraith-Marten, RCN director of legal and member relations, said in November the government’s plans would “erode people’s freedoms”, and added: “Agency workers should never be used to undermine their own colleagues, the freedoms we all enjoy and prop up bad legislation borne out of industrial failure.

“These measures curtail the freedom to strike…. At their core, all these measures are designed to prevent nursing staff from standing up for their patients.”

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