Unite, the U.K.’s largest trade union, has threatened Northampton General Hospital (NGH) with legal action over claims that agency workers are forming their own companies and stepping in for striking workers.
Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, it is an offense for an employment business to supply work-seekers to perform the duties of striking staff.
The union claims it is the first time a National Health Service (NHS) hospital has faced legal action over the use of temporary staff to break a lawful industrial dispute.
The hospital’s hematologists have not been back to work for three weeks after refusing to accept an imposed £6,000 ($10,272) cut in out-of-hours pay and a proposal to double their night-time shift patterns.
Unite advised that it has now lodged an injunction with the Administrative Court in London to stop NGH from using staff supplied through an employment agency to replace skilled biomedical staff.
Unite said it is also seriously concerned that some replacement biomedical staff, supplied by an agency, are setting themselves up as companies in a bid to get around the law on the use of temporary staff in industrial disputes.
The hospital’s response did not satisfy union bosses, leaving Unite with “no option but to commence legal proceedings,” it said.
“We’re witnessing the first case of union-busting in the NHS, which is why Unite will do all in its power to prevent this intimidation,” said Barrie Brown, Unite national officer. “We now suspect the trust of playing semantics with the letter of the law by encouraging some agency workers to set themselves up as limited companies in a deliberate bid to circumvent Regulation 7.”
“We again call on them to abandon this destructive course and work with us on a negotiated solution to this dispute,” he added.
Regulation 7 of The Conduct of Employment Agencies and Employment Businesses Regulations 2003 states:
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 [official] strike or other industrial action.
However, Fiona Coombe, director of legal and regulatory research at Staffing Industry Analysts, advised that workers who supply their services through a limited company are entitled to opt out of the Conduct Regulations. This means that none of the Regulations, including the prohibition on replacing striking workers, apply in relation to the supply of those workers, unless they are or would be involved in working or attending any person who is under the age of 18, or who, by reason of age, infirmity or any other circumstance, is in need of care or attention.