Nurses in hospitals across England, Wales and Northern Ireland will take strike action on 15th and 20th December.
The government may be banking on circumventing their impact by utilising the changes to the Conduct of Employment Agencies and Employment Business Regulations 2003 (which came into force on 21st July). Prior to this amendment, the law was:
“an employment business shall not introduce or supply a work-seeker to a hirer to perform the duties normally performed by a worker who is taking part in a strike or other industrial action”
Regulation 7(1)(a)
The prohibition preventing businesses from supplying temporary agency workers to cover employees who are taking part in strikes has gone.
Will the government utilise this provision?
It is controversial and currently subject to judicial review proceedings by UNISON in the High Court but in theory, yes.
Will this weaken the impact of the strikes?
If patients continue receiving their operations/appointments, they may become less sympathetic to the issue of nurses pay and conditions - the government may be able to avoid the ire of the general public if the NHS continues to function during the action.
However, whilst the government may think that they have outsmarted the nurses, there are currently 50,000 nursing vacancies. So, is there actually the capacity to cover for the nurses on strike?
In addition, some locum/agency nurses are Union members.
Will those replacement workers be as experienced/able to offer the same level of service?
How sensible is it to pay higher agency rates to replacement workers rather than reach a settlement with the nurses?
I am not convinced that the government have found the silver bullet to maintain services during industrial action. There is also the risk that this will further sour industrial relations - workers will be wise to the fact that the Government seems intent on stopping them from exercising their right to strike (by hiring replacement workers) rather than attempting to address the core issue and reach amicable settlements on pay and conditions.
Nurses, like other public sector workers, contend that their pay is not keeping up with inflation and the cost of living or, as importantly, reflective of their conditions in the post-COVID landscape.
The short-term fix of replacement workers will not address this wider, systemic issue.
Martin Mensah
8th December 2022