Questions we have been asked this month

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23 March, 2018

Q. Is it possible to employ agency teachers to cover teaching staff who are going on strike?

A. It is not lawful to supply agency workers to perform the duties normally performed by an employee who is taking part in a strike. Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) prevents an employment business from supplying the employer with agency workers to perform the duties normally performed by a worker who is on strike or taking industrial action, or the duties normally performed by any other worker who has been assigned to cover the striking worker.

This only applies to official strike action endorsed by a union, and does not apply to unofficial action. It also doesn't apply where the employment business "does not know, and has no reasonable grounds for knowing" that the worker who is being replaced is taking part in industrial action.

However, existing employees or agency workers already in place as part of the school can carry on as usual and cover for striking workers, provided their usual work is not then done by new agency workers for the duration of the strike. As such, the existing work force as it stands can be reorganised to minimise disruption, although staff can't be compelled to provide cover under STPCD.

It is also an option to employ temporary workers directly on fixed term contracts rather than hiring agency workers as Regulation 7 will not apply in this instance.

Q. Who must be informed and consulted about employees affected by TUPE?

A. Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) ("TUPE") obliges the employer to inform (and, if appropriate, consult) the "appropriate representatives" of employees affected by the transfer.

Where there is a recognised trade union for affected staff, the representatives of that union are the appropriate representatives. Where there is no recognised trade union, appropriate representatives are either existing employee representatives or new ones specially elected for the purposes of the transfer.

The employer must allow the appropriate representatives access to the affected employees and provide them with such accommodation, where necessary, and other facilities as may be appropriate.

Where there are only a small number of employees affected, we recommended that an initial meeting takes place to inform them of the situation. The meeting should then be followed up in writing with the documentation copied to the recognised union representative or other formally elected representatives in the absence of a union.

Practically speaking, where there are a small number of affected employees, it is likely that employers will be involved mainly in individual/small group consultations. However, employers must show engagement with the union/representatives in order to show compliance with its obligations to inform and consult.

If you require any more information, please view our Education section on the Forbes website or contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively, please send any question through to Forbes Solicitors via our online Contact Form.

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