On 23 June 2022 the government announced that it intends to change the law to enable businesses to take on agency staff to plug staffing gaps caused by industrial action.

This announcement was made in the context of a week of rail strikes, which paralysed the country’s rail network, and the threat of more strike action to come over the summer.

Provisions, first introduced in the 70’s and currently in force under the Conduct of Employment Agencies and Employment Business Regulations 2003, prevent employment businesses from supplying agency workers to fill in for striking employees, or to fill in for employees who themselves are filling in for striking employees.

Draft regulations have now been laid before parliament to repeal these restrictions. These changes would apply across all sectors in England, Scotland and Wales.

The government claims that its plans will give companies the freedom to fill vital roles more easily so that our daily lives remain uninterrupted by strike action. The government press release on this subject said:

Once again trade unions are holding the country to ransom by grinding crucial public services and businesses to a halt. The situation we are in is not sustainable. Repealing these 1970s-era restrictions will give businesses freedom to access fully skilled staff at speed, all while allowing people to get on with their lives uninterrupted to help keep the economy ticking...  Mr Kwasi Kwarteng, Business Secretary.

However, the proposed changes have met widespread criticism from unions and recruitment businesses alike.  Union leaders have expressed concerns that the changes will erode the power of industrial action and therefore have a detrimental impact on employment rights. Meanwhile, leading recruitment businesses including Adecco, Hays, Randstad and Manpower and the REC have written to Mr Kwarteng urging him to rethink the proposals on the basis that they will only inflame strikes and not end them.

Notwithstanding this, the Government seems set to press on with this change “over the coming weeks”.

Assuming the change takes place, employment businesses and their clients will still need to think carefully before supplying or engaging agency workers to cover strike action. In practical terms, some of the considerations to be taken into account include:

• Employers must ensure that they comply with their health and safety obligations by only using workers with the relevant qualifications and skills. In many cases it is unlikely that highly skilled replacement workers will be readily available to replace striking employees, for instance in the case of train drivers. As such, it would not be appropriate to use agency workers to fill these roles.
• Agencies have a duty to make reasonable enquiries to ascertain that supplying a worker for an assignment would not be detrimental to the worker or the client. Workplaces where strike action is ongoing have the potential to be hostile environments which could be detrimental to the agency worker.
• In the current employment market, agency workers have a wide choice of roles and may be less likely to choose to cross picket lines into volatile environments.
• There is a reputational risk to employment businesses if they are seen to be instrumental in strike breaking.

Meanwhile, giving businesses the ability to use agency workers during strike action may have the opposite effect to that intended; it may serve to lengthen disputes and the associated disruption (although this disruption may be at a lower level) as it will delay the urgency of finding a resolution.

With the prospect of upcoming strikes in telecommunications, education, healthcare and the Royal Mail, this is an issue to keep a close eye on for all involved in the sector.

Our Recruitment & Workforce Solutions team collaborate with leading sector bodies and support and promote the recruitment industry; they are at the forefront of industry trends and developments. We work with a large number of recruitment businesses, suppliers, trade associations and government bodies to ensure that the regulatory framework which governs the recruitment industry is understood and operated correctly. If you have any queries about this article or would like to find out more about our sector team, please contact Simon Whitehead or Laura Darnley or any other member of the Recruitment & Workforce Solutions team.