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Court hears challenge on replacing striking nurses with agency staff

Unions argue at High Court that rules allowing agency staff to cover for nurses and other healthcare workers are unlawful interference with right to strike
Strikers at Leeds General Infirmary on 1 May

Unions argue at High Court that rules allowing agency staff to cover for nurses and other healthcare workers are unlawful interference with right to strike

A legal challenge against rules that allow agency staff to cover for nurses and other healthcare workers during strikes has begun at the High Court in London.

Eleven unions, including the Trade Union Congress (TUC), Unite and Unison, have taken the government to court over the new regulations.

They argue that the updated rules are an ‘unlawful interference with workers’ right to strike’. A judgement is expected in the coming weeks.

Unions argue at High Court that rules allowing agency staff to cover for nurses and other healthcare workers are unlawful interference with right to strike

Strikers at Leeds General Infirmary on 1 May
Strikers at Leeds General Infirmary on 1 May Picture: John Houlihan

A legal challenge against rules that allow agency staff to cover for nurses and other healthcare workers during strikes has begun at the High Court in London.

Eleven unions, including the Trade Union Congress (TUC), Unite and Unison, have taken the government to court over the new regulations.

They argue that the updated rules are an ‘unlawful interference with workers’ right to strike’. A judgement is expected in the coming weeks.

It comes after MPs voted in July 2022 in favour of passing legislation allowing employers to use agency nurses – along with bank nurses employed by external providers – during a strike.

Up until then employment agencies were banned from supplying staff to replace workers taking part in industrial action.

Outraged unions say move could compromise agency nurses if they are asked to cross picket lines

The changes to the Conduct of Employment Agencies and Employment Business Regulations Act of 2003 sparked outrage among unions, who raised concerns that the move could compromise agency nurses who are union members if they were asked to cross picket lines.

The TUC has also warned that the new rules will worsen industrial disputes by undermining the fundamental right to strike and could put patient safety at risk if agency staff are required to fill roles they are not trained to do.

Trade unions launched a joint legal action against the new regulations in September 2022. They argued that the changes are unlawful because ministers failed to consult unions and they violate fundamental trade union rights protected in law.

The government claims a 2015 consultation on the removal of regulations preventing agency staff from covering strikes is sufficient to support the 2022 changes.

Michael Ford KC, representing Unison, said a ‘reliance on seven-year old consultation is so unfair as to be unlawful’.

Strikers in Exeter, Devon on 1 May
Strikers in Exeter, Devon on 1 May Picture: Apex

Using agency workers to replace staff makes the right to strike an illusion, say unions

Unison said in a written statement to the court: ‘The replacement of strikers by agency labour has the potential to have a chilling effect, or render the right to strike illusory.’

The union argued the use of agency workers ‘defeats the very purpose of a strike, which is to place economic pressure on an employer’.

The RCN is due to ballot its members on further industrial action in England after nurses rejected the government’s latest pay offer.

During the past six months, for the first time in the RCN’s history nurses in England have taken strike action over poor pay and unsafe working conditions. Nurses in Wales and Northern Ireland also staged walkouts.

A spokesperson for the Department for Business, Energy and Industrial Strategy said it would not comment on an ongoing legal matter.

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