Legal experts have offered their insight on proposed law changes which would allow agencies to supply temporary workers to cover workers taking industrial action.
A growing number of workers across the UK staging walk-outs in recent weeks, as the cost-of-living crisis has seen more staff demand greater financial support from their employers.
In June, thousands of railway workers launched the biggest rail strikes the country has seen in decades, bringing many parts of the country to a standstill. The RMT union, which represents rail workers, said the strike was being held in response to below-inflation pay rise offers and the threat of compulsory redundancies – which the union warns would create safety risks on Britain’s railways.
Elsewhere, pay and working conditions have seen barristers across England & Wales stage pickets outside courthouses across the country. Barristers voted for action with more than 80% of its 2,055 members backing walkouts, the Criminal Bar Association (CBA) said. The lawyers say real earnings have collapsed, dropping 28% since 2006, with junior barristers earning a median income of only £12,200 in their first three years, forcing many to give up their career.
And just last week, approximately 60 workers at Coca-Cola's bottling plant in Wakefield, Yorkshire, announced plans to stage an industrial action ballot after unanimously rejecting the company’s latest pay offer, which was described as “abysmal” by chiefs at Unite the union.
With such widespread work outages, many bosses might be pondering how to avoid too much disruption, should their workforce vote to down tools.
One solution that that UK Government has put forward, is changing the law to allow agency workers to fill-in for striking staff.
The Government’s press release announcing the plans explained the benefits of removing what they describe as “burdensome legal restrictions”, while noting that health and safety rules may still limit how agency workers can be used to cover striking workers. It said the changes “will give businesses impacted by strike action the freedom to tap into the services of employment businesses who can provide skilled, temporary agency staff at short notice to temporarily cover essential roles for the duration of the strike.”
What is the current law?
Current restrictions on employment agencies during strikes prohibit employment businesses from supplying temporary workers to cover for workers “taking part in a strike or other industrial action”.
This restriction does not apply if the agency “does not know, and has no reasonable grounds for knowing” that the workers they are supplying will be replacing those on industrial action. The Conduct Regulations create a criminal offence, punishable by a fine for agencies that break this rule.
These restrictions only apply to the employment agency supplying workers, not to the employer whose workers are on strike. There have never been restrictions on employers moving staff internally or hiring new staff directly (either temporary or permanent) to cover for striking workers.
Has this been tried before?
In 2015, the Conservative Government made attempts to remove the legal ban on agency workers being used to cover for industrial action.
The 2015 Conservative manifesto pledged to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”.
Ultimately, these proposals were dropped following criticism from the Regulatory Policy Committee (RPC) over the Government’s impact assessment for the proposal. The RPC rated the assessment “not fit for purpose.”
Threat of law changes is ‘astonishing’
Samantha Dickinson, Equality and Diversity Partner at Mayo Wynne Baxter, said the threat to remove the current prohibition on engaging agency staff to carry out the work of striking employees was “astonishing”, bearing in mind it wasn’t that long ago that the government voiced outrage when P&O Ferries hired in agency staff to replace the 800 workers that were sacked without notice.
Dickson said: “...in 2015 the government consulted on the removal of this prohibition after promising to repeal ‘nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes.’ Nothing came of that consultation and it’s possible that [this] announcement will meet a similar fate, but as our current Prime Minister is wont to rewrite decades-old ministerial guidance when it suits him, who is to say he won’t push through legislation of this nature.
“It is the Conduct of Employment Agencies and Employment Businesses Regulations 2003 that prevents an agency from supplying a company with temporary workers to perform duties normally carried out by a striking worker, but employers can already circumvent this by employing staff directly.”
Dickinson concluded: “Altering the legislation will mean employers can be more agile when faced with strike action, which will inevitably further erode the rights of workers and the power of their trade unions - a price many who rely on the transport industry in order to go about their daily business may be willing to pay.”
Jonathan Tuck, Employment Partner at Baker McKenzie, highlighted the fact that several agencies had announced they would not supply staff to businesses whose workers were on strike.
Tuck said: "The UK Government has announced that it plans to introduce new regulations to allow businesses to use agency workers to cover striking staff. Currently, businesses are prohibited from doing so. In addition, it is proposed that the level of damages that a court can award against a trade union for unlawful industrial action will increase from £250,000 to £1million.
“If approved by Parliament, these are significant changes to trade union law and give businesses greater flexibility in managing the effect of industrial action. However, it remains to be seen how effective these will be – a number of employment businesses have announced that their workers will not be used to replace striking workers – and taking such an approach, while lawful, is likely to impact industrial and employee relations.
“Whilst the additional flexibility for businesses is welcome, they should think carefully about how they manage their contingency planning going forwards. It will also be interesting to see whether the change to the statutory cap on compensation leads to more employers choosing to sue for damages rather than apply for injunctions to stop the strikes going ahead at all."
