This briefing outlines recent developments following the Government’s announcement on 23 June that it intends to introduce legislation to permit agency workers to be used to fill staffing gaps caused by industrial action. [1]

In order to do this, the Government would have to repeal Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which specifically prohibit the use of agency workers from being used during industrial disputes:

7.—(1) Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform—

(a)the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or

(b)the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker,

unless in either case the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action.

This reflects the long-standing national and international acceptance that agency workers should not be used to replace those on strike, as enshrined in international conventions such as the International Labour Organisation (ILO) and the Code of the World Employment Confederation, to which trade bodies representing the employment agencies and businesses, such as the Recruitment and Employment Confederation (REC), are signed up to.

Should such a change be introduced, it would apply across all sectors, including education. This could have a profound impact on supply teachers, the overwhelming majority of whom are employed and supplied to schools via employment agencies, as well as schools and school leaders.

Indeed, the Secretary of State for Business, Energy and Industrial Strategy, Kwasi Kwarteng, referenced education in a statement made on 23 June 2022, saying, ‘For example, strikes in public services such as education can often mean parents have to stay at home with their children rather than go to work or rail sector strikes stopping commuters getting to work or to other businesses.’

The REC, which represents a number of employment businesses across a range of sectors, including education, has been critical of the proposals to repeal Regulation 7, including producing a template letter that its members can use to lobby their MP against the proposals.

The NASUWT position

The Union opposes the Government’s proposals on the grounds that they further threaten to weaken the rights of all workers, including teachers. These changes by the Government are intended to prevent workers taking collective action to defend their jobs, pay and working conditions. The Government, once again, intends to introduce legislation that is in contravention of its international commitments and obligations. The right to strike is enshrined in international law.

The Government’s contempt for the rights of working people is all too evident in these latest proposals to incite employers to deploy agency workers to undermine legitimate industrial action.

If the Government was serious about improving workers’ rights, it would be focused on improving the pay and working conditions of all workers, including agency workers, tackling the cost of living crisis, prohibiting the use of zero hours contracts, and ensuring that agency workers have the rights of all other workers from day one.

The Government’s proposals have the potential to inflame tensions during any strike action. It would be unacceptable for teachers and headteachers to be placed in this position.

NASUWT Representatives will need to be cognisant of these proposals when engaging with employers and should contact your Local Association or National Executive Member in the first instance if any difficulties arise.

Support the campaign

Please sign the TUC Megaphone Don’t undermine our right to strike petition and encourage all members also to sign it.

The Union has also produced a template letter which members are encouraged to use to lobby their MP to oppose the Government’s proposals. This can be found on the right/below.

[1] The proposed legislation would apply in England, Scotland and Wales, but would have little practical impact in Scotland.