Date updated:

New recently introduced regulations mean employers are no longer restricted from engaging temporary workers when industrial action is taking place, including employers across the education sector.

Previously, it was forbidden to use agency workers to cover the work ‘not’ being carried out by striking employees during industrial action, which was seriously restrictive for employers.

The new regulations revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) and are now in force.  Regulation 7 prevented an employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker.
Polly O’Malley, a Partner in Stone King’s employment team who specialises in education law, said:

“The detrimental impact of a strike is not just financial and reputational, but the massive disruption which makes it almost impossible for an organisation to carry on ‘business as usual’. This is particularly serious in our public services. For example, a school may previously have had to close if a large percentage of staff went on strike as it would not be safe for the pupils to come in, but if the school can hire agency workers to carry out those roles it largely frustrates the purpose of the industrial action. ”

The maximum fine the government can levy on unions for inappropriately calling a strike has also been increased, from £250k to £1million.

The trade union Unison has indicated that it will seek judicial review of the Regulations which can be read here.