Prior to summer 2022, it was a criminal offence to supply agency workers to employers to use as a backfill for striking workers.
Agency workers to replace striking workers
In response to the increase in strike action, the Government introduced new laws so employment businesses can provide agency workers to fill staffing gaps caused by strikes.
In July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 were enacted, changing the previous law and removing the criminal penalty associated with the provision of agency workers in strike action. The Regulations took effect immediately.
Implications of new legislation
The Government’s intention behind the legislation is for essential public services, such as transport and health services, to run as effectively as possible during strike action. For many employers, the use of agency workers may help ease the pressure of delivering essential services while the workforce is on strike. However, it is not without its risks.
Employers will have to ensure that any agency workers they engage have the necessary and up to date skills and training, especially in the education and health sectors. There may be the added complication that agency workers do not have sufficient knowledge of internal systems and processes that allow them to do their job. Employment agencies may have the added concern of sending workers across picket lines and agency workers may be unwilling to do so. There may also be financial considerations if agency workers expect to be paid higher rates to cover strike action.
Reaction of the Unions
Judicial review proceedings have been issued by Unison and the TUC against the Government challenging these new Regulations.
In their judicial review action, Unison argue that the Government’s decision to introduce this legislation is based on outdated and unreliable evidence, rendering the decision unfair. They also note that the Government have overlooked Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.
The TUC began related proceedings along with eleven other unions. They submitted the Regulations are a contravention of the Employment Agencies Act 1973, a breach of Article 11 of the ECHR and that the Secretary of State failed to consult with unions in advance of their introduction.
Time will tell what impact these changes will have or whether the judicial review will halt them in their tracks.
For more information or for specific advice, please contact our specialist Employment Law team.
This article was co-written by Carla Mitchell, Trainee Solicitor.