Out-Law News

Agency workers 'unlikely to step in' to cover striking staff under new law

Rami Labib tells HRNews about the new law allowing businesses to replace striking staff with agency workers

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    A new law is now in place to allow businesses to hire agency workers to plug staffing gaps caused by strike action. The government says it will help ensure crucial public services and people’s daily lives remain uninterrupted by staff strikes.

    The controversial new regulations - The Conduct of Employment Agencies and Employment

    Businesses (Amendment) Regulations 2022 - repeal legislation introduced under Tony Blair’s Labour government back in 2003 which imposed a ban on parachuting in agency staff to cover for striking workers. In 2015 David Cameron’s Conservatives government talked about repealing it but it didn’t happen – the current government has now done that.

    The government has also raised the maximum damages that courts can award against a union, when strike action has been found by the court to be unlawful. The caps on damages, which have not been changed since 1982, have been increased so that for the biggest unions, with at least 100,000 members, the maximum award has risen from £250,000 to £1 million. That change also came into force on 21 July.

    Not surprisingly the trade unions are not happy with the changes, especially the lifting of the ban, and neither are the recruitment businesses. Back in June the TUC and the REC released a joint press statement urging the government to abandon its plans to allow agency staff to replace striking workers. They said the plan is unworkable and that they opposed it in ‘the strongest possible terms’. They urged the government to leave the current ban in place as a key element of a sustainable national employment relations framework.

    Speaking to the BBC at the time, the REC’s CEO Neil Carberry told Radio 4’s The World at One programme that many large recruitment companies had signed up to a global commitment not to replace striking workers and that agency workers would not choose to cross a picket line because they could find work elsewhere. He said there was ‘cold fury’ in the industry because of a lack of consultation.

    UNISON say it will challenge the government’s decision in the courts. The union has written to business secretary Kwasi Kwarteng about its intention to seek a judicial review of the new regulations, which it believes are unlawful. The letter says the government’s reliance on a seven-year-old consultation and flawed evidence to justify changing the law is unlawful. UNISON says it also intends to show that the government is in breach of Article 11 of the European Convention on Human Rights, which protects the right to strike, and international labour standards.

    For the time being at least, the new law is in force - so what impact will it have? That is a question being asked by a number of our clients, both employment businesses and end users. Rami Labib advises on the commercial contracts affecting both agencies and end users, and he joined me by phone from Birmingham to discuss this. I asked Rami for his view on the law change:

    Rami Labib: “Well, I think fundamentally, Joe, the government has brought this change with the idea that it will ease the burden and ease the impact of mass strikes in various sectors and, I think, from my perspective, I feel that's unlikely to happen and I think that's for a number of reasons. Firstly, agencies have to go through a very rigorous screening process and ensure that they are delivering up to their clients workers that have a sufficient quality expertise. They may need to upskill and train, certainly in terms of specialist areas such as with train drivers, for example. So, I feel, certainly, if there is a strike called at short notice, I feel that it would be a very big ask for the agency network to be able to meet the demands of the industry which is affected, because I just don't think there is going to be the ability to do that based on the inherent skill set of workers. I also think there is a policy question here. I think agencies are going to be put in a very tricky situation around whether they choose, actually, from an institutional policy perspective, to engage end user clients to supply workers to cover strikes - I think that that may take some time for them to decide on policy. Finally, I think there is a point around the labour market at the moment. There are a lot of roles and a lot of vacancies out there and I would be questioning whether skilled, experienced, agency workers would want would choose assignments of a very short term nature to cover strike action where actually they could have their pick and take something less politically sensitive, something longer term, rather than put themselves in what could be a quite a tricky situation around helping to plug the gap left by workers who are striking.”

    Finally on the subject of strikes there is speculation that we are heading for a summer of discontent which could, perhaps, continue into the winter. The Guardian’s headline ‘Stuff your 5%!’ refers to transport workers, barristers, doctors, teachers, nurses, civil servants. They say: if they haven’t yet voted to strike, they’re likely to do so. Back in February Jon Coley talked to this programme about

    contingency planning and tactics to mitigate the impact of strikes and leverage campaigns – that’s ‘Contingency planning key to 'business as usual' in face of strike action’ and is available for viewing from the Out-Law website.


    - Link to HRNews programme: ‘Contingency planning key to 'business as usual' in face of strike action’

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