Regulation changes allow schools to use agency staff in the event of industrial action

Schools and colleges across the country are already facing difficulties recruiting and retaining staff, including teachers. 

In July, the Government made legislation changes to allow agency staff to be employed in the event of industrial action.

Previously, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevented agencies from supplying temporary workers to fill duties by employees taking part in strikes.

This has now changed and the regulations permit employers, including schools and colleges, to use temporary agency staff to provide cover for essential roles during periods of strike. 

What do the regulation changes really mean for schools?

Whilst the recent change to the regulations will certainly help schools plan for how they will deal with strike action and give them another option which may help avoid missed lessons due to closure, it would be naïve to think it presents an immediate solution. 

Are agency staff the answer?

There’s already a high demand for agency staff and it remains to be seen if there will be increased availability.

It’s worth noting that agency staff won’t necessarily want to cross a picket line and work in schools dealing with industrial action. They may prefer to accept a placement in a different school without those challenges.

So will the regulation changes have any impact?

The changes could well be beneficial and it may be that, for example, schools could choose to employ agency staff to specifically deliver to GCSE and A-level priority groups or avoid closures. 

I believe the key driver behind the change in the regulations is ostensibly to help employers plan for, and perhaps avoid, some of the disruption caused by strikes. It is not necessarily ‘the answer’ but some schools may find it helpful.

What other planning can schools do?

Schools have always been able to employ individuals directly on a fixed-term basis to cover the duties of striking employees. There are obvious regulatory requirements for schools in contracting directly with individuals to provide cover, not least of which the need to ensure all individuals have the necessary references and DBS checks in place. For newly appointed staff, schools must obtain a barred list check with an enhanced criminal record check. For employees transferring from a similar position without a break in service of more than three months, schools must carry out a barred list check and can choose to carry out an enhanced criminal record check if they wish but there is no requirement to do so.  Some forward planning can help overcome these hurdles and schools or groups of schools may wish to consider creating a ‘bank’ of staff who can be used for cover and already have the necessary documentation in place.

Other options include the use of volunteers, which again requires DBS clearance, internal staff deployment and being more flexible with existing resources – especially within multi academy trusts or other groups of schools such as Federations.

Does the curriculum have to be delivered on strike days?

No – there is no legal obligation to deliver the curriculum requirements on strike days, and therefore schools can organise alternative activities such as sport and enrichment – possibly with the use of alternative agency staff.  Of course, this won’t avoid possible disruption to a pupil’s learning but it may go a long way to keeping schools open and maintaining good relationships with parents who may otherwise have had to stay at home with their children rather than go to work.

Schools should note that if they do intend to engage with agency workers, the change in the regulations does not excuse any employer from their broader health and safety rules and they will still have a responsibility to hire cover workers with the necessary skills to ensure they meet those obligations towards pupils and the wider school community’.

Schools also have to consider how to maintain good relationships with employees whether they opt to take industrial action or not.