05/10/2022
On 21 July 2022 the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force enabling employers in England, Scotland and Northern Ireland to use agency workers to:
- perform the duties normally performed by striking workers; or
- perform the duties normally performed by another worker, who has been reassigned to perform the duties of a striking worker.
Background
Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevented “employment businesses” from supplying agency workers to perform the duties of workers taking part in an official strike (or indeed the duties of a worker reassigned to perform the duties of an officially striking worker). To knowingly supply workers in these circumstances was a criminal offence.
In July 2015, as part of wider trade union reforms, the Government consulted on revoking Regulation 7. However, as the Regulatory Policy Committee declared this consultation “not fit for purpose”, the Government did not publish a formal response to the consultation or proceed with the proposed revocation.
In June 2022, in the midst of the rail strikes and increasing concern regarding a general strike, the Government put the Draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 before Parliament. They relied on the 2015 consultation, despite the fact that no formal response to that consultation had been published.
What are the practical implications of the legislation?
Employment agencies are now legally permitted to supply agency staff to perform the duties of workers taking part in official strike action. On the face of it, for many employers, in particular those in the education and health sectors, being permitted to use agency workers will help to ease the strain of covering the duties of those staff participating in strike action.
However, in reality, employers may still have trouble replacing striking workers with agency workers, particularly if a large proportion of the workforce opts to strike. Employers will have to ensure they employ temporary workers with the necessary skills, and they remain bound by their health and safety obligations.
Further, employment agencies may be uncomfortable sending workers across picket lines and agency staff could be unwilling to accept work in these circumstances, given they may be subject to harassment and difficult working conditions. There is also the risk that casual workers and/or agency workers may expect to receive inflated rates to cover industrial action. For example, this summer, the BMA published a rate card for consultants being asked to work extra hours to provide cover for absent colleagues, which drew criticism from NHS managers.
Consideration of the use of agency workers should form part of an employer’s strike action contingency planning at an early stage. It is important to assess the balance between the benefits of retaining agency workers to cover striking staff, and ongoing industrial relations. Whilst using agency staff provides an immediate solution to maintaining continuity of services, trade unions have made their thoughts on this legislation particularly clear (see below) and any such move may inflame tensions, make negotiations more protracted and, as a result, could lead to longer, more intensive strike action. As such, employers may wish to consider other more palatable options in the first instance, such as:
- Using existing employees or casual workers to cover the work of striking employees, limiting the use of agency workers to perhaps backfill these staff (as has always been permissible)
- For those in the public sector, explore, in advance, the possibility of agreements with neighbouring organisations in the same system to lend / borrow staff to provide cover where industrial action has not been co-ordinated across the system.
- Temporarily outsourcing service provision in affected areas to a third-party.
Judicial reviews
Employers should be aware that a number of separate, but similar, legal proceedings against the government in relation to the lawfulness of this legislation have commenced or are contemplated.
Unison began judicial proceedings in the High Court on 13 September 2022, on the basis that the government’s decision is unfair and is based on the outdated evidence of the 2015 consultation. On 20 September the TUC – along with 11 other unions – also launched a judicial review challenge, arguing the Secretary of State (then Business Secretary, Kwasi Kwarteng) failed to consult unions on the proposed changes, in contravention of the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR (Freedom of assembly and association). NASUWT, the teachers' union, has also announced its intention to issue proceedings.
The claims are all likely to be heard together, and we will keep you updated as these proceedings progress.
Please do contact our Employment team if you require further advice or assistance in respect of forthcoming or threatened industrial action.
This article was co-written by Heather Stickland, Senior Associate, and Laura Cook, Trainee Solicitor.
