On 23 June 2022, amidst the biggest rail strike the UK has seen in 30 years and with the threat of further industrial action on the horizon, the government announced a proposed change in the law to make it easier for employers to use temporary staff to help ease disruption caused by strike action.
What is the current law?
While there are limited legal restrictions on employers moving or taking on new staff during strikes, regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) (“Regulation 7”) prohibits employment businesses from supplying temporary workers to perform duties normally performed by either:
- a worker who is taking part in a strike or other industrial action; or
- any other worker who is assigned to perform the duties normally performed by a worker who is taking part in a strike or other industrial action.
An employment business engages individuals (often referred to as “work-seekers”) under either a contract for services or a contract of employment and supplies them to clients for temporary work. Employment businesses differ from employment agencies who find their client individuals who enter into a direct contractual relationship with the client.
Under the current law, therefore, employers must engage temporary workers directly to plug staffing gaps during industrial action.
What change in the law is the government proposing?
On 23 June 2022 the government announced that it is proposing to remove the restrictions set out in Regulation 7 and instead give employers 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” without having to contract with the temporary worker directly. It is the employer’s responsibility to ensure that these temporary workers have the necessary skills and/or qualifications to meet health and safety obligations.
The government argues that this change in the law will provide employers with more flexibility to engage temporary workers so that their businesses and services can continue operating which, in turn, will help reduce the disruption caused by strikes on the British public.
What has been the reaction to the government’s proposal?
There has been a mixed reaction to this proposed change which, subject to parliamentary approval, is said to be coming into force over the coming weeks. Whilst many welcome the proposed removal of the restriction as it should ease the effects of disruption caused by strike action, some unions and recruitment bodies have condemned the government’s actions including TUC general secretary, Frances O’Grady, who believes that “These plans are a deliberate attempt to undermine the right to strike and to reduce workers’ bargaining power…Bringing in less qualified agency staff to deliver important services will endanger public safety, worsen disputes and poison industrial relations.”
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