In the face of the cost of living crisis there has been an increase in industrial action across multiple sectors, which seems set to continue and bring an extended period of disruption across the UK. The rail network was brought to a standstill in late June and further strike action is threatened in the rail, air, postal and healthcare sectors.
To combat this, the Government has announced a plan to lift an existing ban and allow recruitment companies to supply agency workers during industrial action and to increase the maximum amount payable in damages by trade unions where industrial action is found to be unlawful. The Government’s hope is that these changes will safeguard the economy and minimise the impact strikes have on people and businesses.
Current law
It is currently a criminal offence for a recruitment company to supply agency workers to employers, in the following circumstances:
- to perform the duties of a worker who is on strike; or
- to perform the duties of a worker who themselves have been assigned to cover the duties of someone on strike.
This current restriction prevents businesses from being able to use agency workers to protect businesses and their services against the full impact of industrial action.
It should be noted that this restriction only prevents the use of agency workers where they are being supplied through a recruitment company. There is nothing that prevents employers from contracting with temporary workers directly to cover the work of striking employees. However, in practice this option has proven to be less attractive to employers as it can be a slow and costly process to contract with the workers directly and employers can struggle to finalise the arrangements before industrial action commences.
Comment
Whilst the proposed changes will not be popular amongst trade unions, and it remains to be seen whether agency workers will want to cross picket lines and work in this type of environment, using qualified agency workers to carry out the work of those on strike has clear advantages for businesses. It will help businesses better plan for industrial action, give them access to skilled agency workers at short notice, and the flexibility of agency workers will enable businesses to avoid disruption and maintain their services while industrial action is taking place.
However, businesses will need to ensure that any agency workers they use have the necessary training, experience and qualifications that are required to carry out the work safely and efficiently, otherwise it will have a detrimental impact on the quality of the service, safety and on employee relations generally.
Where employers are threatened with industrial action they should plan as far ahead as reasonably possible to reduce the impact on their businesses, which (once this restriction has been lifted) could include using agency workers to maintain key services for the duration of any industrial action. If employers consider that the planned industrial action may be unlawful, they should obtain legal advice as appropriate.
For further information on industrial action please contact a member of the Employment Team.
