'Ethical responsibility' | First UK firm using new 'strike-breaker' law faces an early setback

First UK firm using new 'strike-breaker' law faces an early setback

A school has become one of the first workplaces in Britain to utilise recently-passed laws that allow the use of agency workers to fill for striking staff.

Multiple publications have reported that temporary staff have been brought in to break a strike at Drapers’ Pyrgo primary in London. Around 10 staff are said to be staging the walkout in protest against cuts to their wages and working hours.

In a letter sent to parents in late August, the school’s principal Louise Fisk, wrote: “A change in legislation in July means that schools can now use agency/temporary workers to cover the work of striking employees. This change in legislation allows the school to manage the impact of the strike days more effectively and, more importantly, we can fully continue with the educational service.”
Bushra Nasir, the Chief Executive of the trust which runs the school, said a “generous offer” had been rejected by staff over the summer and that the strike risked damaging students’ education.

She said: “In putting our students first, we reluctantly took the decision to hire some agency staff to cover some roles during the strike, in line with government legislation.

“This was to ensure that all pupils could attend school during any further disruption. It was not politically motivated or done to undermine the strike but purely in the best interest of our children and their families.”

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However, a couple of agencies that had originally agreed to supply the school with temporary staff have pulled out after learning of the circumstances.

According to The Guardian, one agency called Pertemps reportedly pulled out of providing supply staff following discussions with the National Education Union (NEU).

“We were completely unaware of the strike action,” wrote Andrew Anastasiou, the firm’s MD, in a letter to the NEU.

“We have no intention involving ourselves or undermining any parties and fully appreciate the ethical responsibility. We wholeheartedly do not knowingly supply workers to cover for industrial action” he went on.

A second agency, Simply Education, did agree to provide staff but also pulled out after The Guardian got in touch, the publication said.

A look at the ‘strike-breaker’ law

In July 2022, MPs approved controversial changes to the law to allow agency workers to fill in for staff on strike, in response to the growing number of sectors, such as rail workers, staging strikes over pay disputes and working conditions.

Prior to the proposal being approved in Parliament, the Government’s press release announcing the plans explained the benefits of removing what they describe as “burdensome legal restrictions”, while noting that health and safety rules may still limit how agency workers can be used to cover striking workers.

It said the changes “will give businesses impacted by strike action the freedom to tap into the services of employment businesses who can provide skilled, temporary agency staff at short notice to temporarily cover essential roles for the duration of the strike.”

Unions are fighting back

Understandably, the approval of this new law sparked an immediate and fierce backlash. It promtpted several unions to join forces and launch a fight back against the new laws.

Eleven trade unions, coordinated by the TUC (Trade Union Congress) and represented by Thompsons Solicitors, began legal proceedings to protect the right to strike last month.

The unions – ASLEF, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw – cover a wide range of industries and represent millions of workers in the UK. They argue that the regulations are unlawful because:

The then-Secretary of State for business failed to consult unions, as required by the Employment Agencies Act 1973.

They violate fundamental trade union rights protected by Article 11 of the European Convention on Human Rights.

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The TUC warned that these new laws will worsen industrial disputes, undermine the fundamental right to strike and could endanger public safety if agency staff are required to fill safety critical roles but haven’t been fully trained.

The Recruitment and Employment Confederation (REC), which represents suppliers of agency workers, described the proposals as “unworkable”.

The Lords Committee charged with scrutinising the legislation said “the lack of robust evidence and the expected limited net benefit raise questions as to the practical effectiveness and benefit” of the new laws.

The TUC also recently reported the UK Government to the UN workers’ rights watchdog, the International Labour Organisation (ILO), over the recent spate of anti-union and anti-worker legislation and proposals, including the government’s agency worker regulations, which it says are in breach of international law.

TUC affiliated unions UNISON and NASUWT are also launching separate individual legal cases against the government’s agency worker regulations.

TUC General Secretary, Frances O’Grady, said: “The right to strike is a fundamental British liberty. But the government is attacking it in broad daylight.

"Threatening this right tilts the balance of power too far towards employers. It means workers can't stand up for decent services and safety at work – or defend their jobs and pay.

“Ministers failed to consult with unions, as the law requires. And restricting the freedom to strike is a breach of international law.

“That’s why unions are coming together to challenge this change in the courts.

“Workers need stronger legal protections and more power in the workplace to defend their living standards – not less.”

Richard Arthur, Head of Trade Union Law at Thompsons Solicitors LLP, said: “The right to strike is respected and protected by international law including the Conventions of the ILO, an agency of the United Nations, and the European Convention on Human Rights.

“The Conservative Government should face up to its legal obligations under both domestic and international law, instead of forever trying to undermine the internationally recognised right to strike.”

The fight back

The Government’s decision to change the law on strike action has been met with huge backlash since its announcement, and the decision by almost a dozen unions to come together and launch a legal fightback shows that workers will not take the new law lying down.

Even if the unions’ case is not successful in court, it remains to be seen how effective these laws will be – a number of employment businesses have announced that their workers will not be used to replace striking workers – and taking such an approach, while lawful, is likely to impact industrial and employee relations.

As Samantha Dickinson, Partner at Mayo Wynne Baxter, previously told HR Grapevine: “...this new legislation will inevitably erode the rights of workers and the power of their trade unions as well as causing tension between agency and non-agency staff".

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