Unions have launched a fight back against new laws allowing firms to replace striking workers with agency staff.
Eleven trade unions, coordinated by the TUC (Trade Union Congress) and represented by Thompsons Solicitors, began legal proceedings to protect the right to strike this week.
The unions – ASLEF, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw – have taken the case against the Government’s new regulations which allow agency workers to fill in for striking workers and break strikes.
It was in July 2022 that MPs approved controversial changes to the law, partly in response to the growing number of sectors, such as rail and postal workers, staging strikes over pay disputes and working conditions.
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Prior to the proposal being approved in Parliament, 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.”
The unions, which come from a wide range of sectors and represent millions of workers in the UK, argue that the regulations are unlawful because:
The then-Secretary of State for business failed to consult unions, as required by the Employment Agencies Act 1973.
They violate fundamental trade union rights protected by Article 11 of the European Convention on Human Rights.
The change has been heavily criticised by unions, agency employers, and parliamentarians.
The TUC has warned that these new laws will worsen industrial disputes, undermine the fundamental right to strike and could endanger public safety if agency staff are required to fill safety critical roles but haven’t been fully trained.
The Recruitment and Employment Confederation (REC), which represents suppliers of agency workers, described the proposals as “unworkable”.
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The Lords Committee charged with scrutinising the legislation said “the lack of robust evidence and the expected limited net benefit raise questions as to the practical effectiveness and benefit” of the new laws.
The TUC also recently reported the UK Government to the UN workers’ rights watchdog, the International Labour Organisation (ILO), over the recent spate of anti-union and anti-worker legislation and proposals, including the government’s agency worker regulations, which it says are in breach of international law.
TUC affiliated unions UNISON and NASUWT are also launching separate individual legal cases against the government’s agency worker regulations.
TUC General Secretary, Frances O’Grady, said: “The right to strike is a fundamental British liberty. But the government is attacking it in broad daylight.
"Threatening this right tilts the balance of power too far towards employers. It means workers can't stand up for decent services and safety at work – or defend their jobs and pay.
“Ministers failed to consult with unions, as the law requires. And restricting the freedom to strike is a breach of international law.
“That’s why unions are coming together to challenge this change in the courts.
“Workers need stronger legal protections and more power in the workplace to defend their living standards – not less.”
Richard Arthur, Head of Trade Union Law at Thompsons Solicitors LLP, said: “The right to strike is respected and protected by international law including the Conventions of the ILO, an agency of the United Nations, and the European Convention on Human Rights.
“The Conservative Government should face up to its legal obligations under both domestic and international law, instead of forever trying to undermine the internationally recognised right to strike.”
Firm threatens to take advantage of new law
In August, it was reported that Harrods was prepared to use agency workers to replace staff who were considering striking.
According to the Unite union, the iconic luxury outlet sent a letter to staff ahead of an industrial action ballot, with approximately 150 staff set to vote over what the union calls a “pay cut disguised as a rise”.
Unite said staff had rejected an initial five per cent pay offer and talks with the conciliation service Acas were agreed. Two days before the Acas talks, and without notifying Unite’s workplace representatives or officials, Harrods reportedly wrote to security staff offering them a seven per cent pay rise to bring their below-average wages up to industry standards.
The strike ballot was announced in response to this offer.
Harrods’ letter to staff working in store services, engineering, maintenance and security, reportedly stated: “Recent legislative changes relating to the Conduct of Employment Agencies and Employment Business Regulations now allows agencies to provide temporary workers to perform duties normally performed by a worker who is on strike. We are therefore no longer restricted from engaging temporary workers should any industrial action take place now or in the future.”
The fight back
The Government’s decision to change the law on strike action has been met with huge backlash since its announcement, and the decision by almost a dozen unions to come together and launch a legal fightback shows that workers will not take the new law lying down.
Even if the unions’ case is not successful in court, it remains to be seen how effective these laws 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.
As Samantha Dickinson, Partner at Mayo Wynne Baxter, previously told HR Grapevine: “...this new legislation will inevitably erode the rights of workers and the power of their trade unions as well as causing tension between agency and non-agency staff – a short-term price many who rely on the transport industry in order to go about their daily business may be willing to pay.”