Lifting of UK’s ban on using agency workers during strikes would be ‘short-lived’

The Government has launched a fresh consultation on the use of agency workers to cover employees who are on strike. It seeks views on whether the government should repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which prevents the supply agency workers to cover the duties normally performed by a worker who is taking part in a strike or other industrial action. We’ll speak to an industrial relations expert on what lies ahead.

The consultation follows the High Court ruling in July in a case brought by Unison which found that previous legislation introduced by the government to repeal regulation 7 was unlawful. The consultation runs for another few weeks until 16 January.

This goes all the way back to David Cameron’s government when the repeal of regulation 7 appeared in its manifesto for the 2015 General Election. They consulted on it at the time and decided it was not the right time to proceed. The issue was looked at again last year by former business secretary Kwasi Kwarteng who repealed the agency worker ban in summer 2022. That was highly controversial - regulation 7 had been in force since 1976 and, as it turned out, it was very short-lived. Justifying the action at the time, Kwarteng said he was relying on the consultation carried out in 2015 to discharge his statutory obligation under section 12 of the Employment Agencies Act 1973 to consult ahead of repealing regulation 7. He concluded that the fundamental issues were unchanged, and that no new information was likely to emerge from a further exercise. However, in July this year the High Court ruled that this course of action was not sufficient to comply with the specific legal duties on consultation set out in section 12 of the 1973 Act and, accordingly, quashed the regulations. The Court did not, however, make any finding on whether repealing the repealing the regulations contravened Article 11 of the European Convention on Human Rights and that avenue of challenge remain open to the trade unions. 

Personnel Today reports on this and quotes Neil Carberry, CEO of The Recruitment and Employment Confederation who disagrees with the government’s stance, and makes a valid point about agency staff. He says: “The announcement of a consultation on whether to remove the prohibition on use of agency workers in strikes is a disappointment, given the scale of opposition from employers and workers to the previous proposal.’ He goes on: ‘It is also puzzling that the government assumes agency staff will choose a role that requires them to cross a picket line versus one that doesn’t, when we have 2 million job postings in the UK.’

So let’s get a view on this. Diane Nicol is an industrial relations expert and earlier she joined me by phone from Glasgow to discuss it. I asked for her forecast on how this might pan out:

Diane Nicol: “My forecast on this piece of legislation is it's the government making its second attempt to remove this ban on agency workers and, for me, there are two major issues with it. One, the unions do not like it at all, successfully challenged it before, and will make another challenge on it. Now, they may not succeed in relation to consultation because clearly the government is now trying to meaningfully consult on it but they may well challenge on Article 11, the freedom of association and assembly, the human right, effectively. So, they will try to challenge it. Whether they will win on that point is another issue but more fundamentally, I think, is the very strong possibility that we will have a change of government and Labour have made it clear that they will look at, and repeal, certain elements of anti-strike legislation and, for example, make recognition of unions easier. So, I think the biggest issue with this legislation is it might not be in place for very long.”

Joe Glavina: “I just want to move on to consider what would happen if this legislation does come back because even if the government gets its way there are problems. First, it depends on the availablity emergency staff at short notice and, even if agency staff can be found, are they going to have the right skill-set to do the job?” 

Diane Nicol: “I think one of the issues in the consultation, actually, was that the agencies themselves - and Neil Carberry points this out - do not want to become involved in industrial disputes. That's the last thing they want, and they didn't want to bring the industry into disrepute by effectively breaking strikes. So, that is a big issue for employers if they want to engage workers from employment businesses who are actually employed by those employment businesses. The other issue, of course, is health and safety and there is an obligation for the people who are supplied as agents to be able to perform the work and in certain areas like health care, like rail, for example, it's going to be really important that the people have the actual skills. So you're right, availability of those skills is going to be a big issue and, furthermore, the agency workers themselves may have some sympathy with those striking workers. So, there may be an issue in actually getting those individuals to sign up.” 

Joe Glavina: “As you say, this legislation, even if it does come in, may be short-lived. So what are the alternative options for employers, other than relying on agency staff to cover work at times of strike action? What have you advised clients to do in the past?” 

Diane Nicol: “So we've been dealing with this ban on agency workers for some years. We had a brief period earlier this year where there wasn't such a ban but, basically, we've advised clients to either bring in individuals from other areas of their business to cover the work because often if you've got one site striking, there may not be a strike at another site and workers can be flown in etcetera, to keep a minimum level of operation. Of course, you have difficulties with that in relation to the fact that some workers will not want to break a strike, so that causes a few issues. Other options are to engage people directly, rather than through employment businesses who employ the agency workers because you can, actually, engage them directly to cover the strike, but that's expensive and there are availability issues, as we've discussed, with that in relation to having the correct skills, training people up, health and safety issues, all sorts of things that cause challenges with bringing in people at short notice. Other coverage that clients have used is using managers. So for example, where managers have previously been on the line, as it were, they've put the managers back onto the line to cover the strike because very often, of course, managers are not involved in the strike itself. So, that's another option, but none of it is very easy for an employer to cover strike action and obviously the government has said in the consultation that it wants to keep a balance between the unions and their workers having an ability to strike, but the continuing operation of businesses.”

The Government’s consultation is called ‘Hiring agency staff to cover industrial action’ and runs for another 6 weeks or so until 16 January so you still have time to respond to it if you wish. We’ve included a link to that in the transcript of this programme for you. 

LINKS

- Link to Government consultation: Hiring agency staff to cover industrial action