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Junior Doctors Strikes: Legal position of recruitment agencies

Posted on 27 November 2015

Junior doctors have voted in favour of 24 hour strike action following the ongoing row with the government over proposed changes to their contract. The strike is planned for the 1 December where junior doctors will only provide emergency care.

This will then be followed by an all-out walkout from 8am to 5pm on 8 December and then 16 December.

What does this mean for agencies?

Under Regulation 7 - restriction on providing work-finding services in industrial disputes means we will not be able to assist you in finding cover

The recruitment sector is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the 'Conduct Regulations').

Regulation 7 of the Conduct Regulations prohibits employment businesses from providing agency workers to:

• cover the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action.
• cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action.

Temporary workers booked at your organisation to work on the strike dates can still continue to work so long as they will not be performing the duties outlined by Regulation 7 above.

We have been advised to get written confirmation from your organisation in line with regulation 7

Over the next week, we will be reviewing all existing (and any new) bookings which overlap with the proposed strike dates and will be requesting written confirmation from medical staffing teams that:

"the work-seekers requested will not be used to replace workers who are on official strike or to replace staff that the client has transferred to undertake the duties of workers on strike."

When the booking was made will not be taken in to account - what is important is that the temporary worker provided is not used to replace workers who are on strike or to replace staff that you may have transferred to cover the duties of a worker on strike. For example, it is perfectly legitimate for you to request an agency worker to directly cover another worker who is sick or on annual leave, but we would need written assurance as per the above that this is the role they will be covering while on assignment.

We will also be speaking to any doctors booked to work on dates that coincide with a strike date to check if they are happy to continue with the assignment on those dates; to give you advance warning should they decide to cancel and to use our best endeavours to comply with notice periods as per the Frameworks or SLAs. Again, we could book another doctor as a replacement but only following written confirmation from your Trust in line with regulation 7.

Note, however, that doctors are not required to tell their employers that they are striking and that there is the potential that a doctor considering striking may already be booked on locum assignments for a strike day. To date, these doctors have been letting us know that they will no longer be able to fill the assignment - and in those circumstances we cannot rebook another doctor for that assignment due to Regulation 7. We will, of course, keep you informed.

If you have any queries, please contact our client team - call 0208 099 6947 or email client@medicinternational.co.uk

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Holt Doctors Ltd

Part of Holt Doctors Ltd - listed on all the national supplier frameworks, a leading
provider of locum and permanant doctors to NHS Trusts and the private sector.