Government overturns ban on agency staff covering striking workers

by Ben Ireland

‘Sham’ proposals pass despite criticism in Parliament debate

Location: UK
Published: Friday 22 July 2022

The Government has overturned legislation banning the use of agency staff by employers when workers go on strike – and increased the level of damages unions can face for taking unlawful industrial action.

Proposals to undermine strike action were passed through the Lords on 18 July after Conservative MPs voted in favour of the legislation in the Commons last week.

The BMA strongly opposed the proposals and briefed MPs and Lords that the Government is required to consult before making such regulations. The latest consultation was in 2015, after which proposals were abandoned in the face of widespread criticism.

Labour peer Lord Collins led the criticism of the legislation in the Lords. 

He tabled a regret motion insisting regulations were introduced ‘without required or sufficient consultation’, but this was voted down.

He argued the regulations would ‘do little to address the trained workforce shortfalls, could put workers’ safety at risk, will harm industrial relations, and may breach international law’.

Conservative peer Lord Balfe, honorary president of the British Airline Pilots Association, told the Lords he ‘cannot see the purpose of the regulations’.

He noted the regulations ‘do not appear to have had the requisite consultation’, adding: ‘I would not be surprised if, at judicial review, they did not manage to stand up.’


Worker relations

Liberal Democrat peer Lord Paddick said overturning the legislation, from 2003, ‘appears to be a sham’. He added: ‘It is another pretence at doing something instead of what the Government should actually be doing, which is enabling, empowering and facilitating employers to negotiate effectively with their employees and the trade unions that represent them to prevent the need for strikes in the first place.’

Responding to the criticism, Parliamentary under-secretary at the Department for Business, Energy and Industrial Strategy, Lord Callanan, said the 2015 consultation was ‘extremely thorough’ and ‘the fundamental issues remain the same’.

Alongside this change, an increase to the levels of damages a court can award in the case of unlawful strike action will rise by 400 per cent. That means the smallest unions could face maximum fines of £40,000, up from £10,000 while the larger unions could face up to £1m in fines, up from £250,000. Labour failed in an attempt to annul this in the Commons.

Lord Collins said the increase was ‘a threat that may inhibit the legitimate exercise of the right to strike’ and that it, alongside the lifting of the agency worker ban, was a ‘political exercise’ to ‘deflect from the failure of Her Majesty’s government to engage meaningfully’ with unions.

Lord Balfe noted unions ‘spend a hell of a long time looking at complying with the law’ before threatening strikes, so increasing potential damages for unlawful action is ‘pretty useless’.

The under-secretary of state said law-abiding unions should have ‘nothing to worry about’.

Emma Runswick, deputy chair of BMA council, said: ‘This is a heavy-handed tactic that attempts to weaken the legitimate rights of staff to take action when the Government and employers refuse to acknowledge and act on workplace concerns.

‘It is a cynical ploy by the Government that further devalues highly trained clinical staff embedded within the systems and cultures of their workplace. When it comes to doctors and other healthcare staff, bringing in agency workers unfamiliar with hospitals or other settings may plug gaps on the surface but ultimately it will not serve the best interest of patients.

‘We are deeply disappointed that the Government’s response to rising concerns in the workforce is this attempt to clamp down on legitimate trade union activities and the rights of NHS workers. We invite the Government to instead engage with the concerns of staff across the NHS where doctors and colleagues continue to care for patients and save lives.'