Challenges remain even if agency workers strike ban repealed, warns lawyer

The rail dispute is unresolved and the government is pressing ahead with its plan to change the law to make it easier for businesses to use temporary staff to help ease disruption caused by strike action. Will the change make a difference? Could it be challenged? What should employers be doing, if anything? We’ll consider that.

Last week the government issued a press release about secondary legislation to allow the supply of agency staff to plug the gaps. Subject to parliamentary approval, the changes will come into force in a few weeks’ time, probably around mid-to-late-July, and will apply across England, Scotland, and Wales.

Under the current law (Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003) employment businesses are restricted from supplying temporary agency workers to fill duties by employees who are taking part in strikes. That’s the regulation the government wants to repeal although, importantly, they warn that businesses relying on the change will need to make sure that any agency worked they hire have the necessary skills and/or qualifications in order to meet health and safety obligations. Aside from that, the government has also announced it is raising the maximum damages that courts can award against a union, when strike action has been found by the court to be unlawful. The caps on damages, which have not been changed since 1982, will be increased so that for the biggest unions, the maximum award will rise from £250,000 to £1 million.

The industrial unrest has also spread to the airline industry. As the BBC reports, hundreds of British Airways workers at Heathrow Airport have voted to go on strike over pay with backing from Unite and the GMB. A total of 700 workers – mostly check-in staff – are set to strike during the summer holidays. The unions said the action was due to a 10% pay cut imposed during the peak of the pandemic not being reinstated. 

So, there is plenty going on this area right now so let’s get a view from Jon Coley who has been following all of this closely, as you might expect. Jon joined me by video-link from Birmingham and I started by asking about that plan to change the law:

Jon Coley: “Well, it's an interesting response, Joe, by the government to the railway workers strike. I mean, this idea is nothing new, it has been floating around since 2015, the Cameron government when they introduced the Trade Union Act. It's a question we often get asked at the outset of strike action, whether employers can use agency workers to cover and backfill the roles of those who are on strike and, of course, at the moment, it is a criminal offence for agencies to supply agency workers in that situation and that affects the employer because the unions are alive to this and will often write to the employer suggesting that obviously they have collaborated with the agency and induced, effectively, that breach of the law on the agency’s part. The new legislation which the government is intending to introduce is secondary legislation, so without a primary bill, and would allow employers in those circumstances to bring in agency workers in order to cover the work which was previously done by striking workers. Now, Joe, at face value, that may seem like a good thing, and I'm sure many employers will welcome it, but there are a few practical, as well as legal, challenges which you can see on the horizon. From a practical perspective, we're in a world of near full employment and already we've seen commentary from agencies that actually staff will have a choice, agency workers will have a choice as to where they go and work, and are they really going to put themselves in the line of fire by going to replace striking workers by crossing picket lines and by opening themselves up for all sorts of abuse and criticism, when they were probably equally well paid roles available elsewhere? So I suspect the first will actually be availability of supply of agency workers. Then linked to that, of course, is that it wouldn't help in relation to something like the train strike anyway because you can't suddenly find skilled or safety-critical roles through agency staff. So it may help employers where they're looking at covering the roles of, perhaps, unskilled staff but it is not going to be a panacea, it's not going to be a quick fix for employers.”

Joe Glavina: “Not surprisingly the unions are not happy about this, Jon, and they are talking about legal challenges to what the government is doing. Thoughts on that?” 

Jon Coley: “It’s going to be an interesting one, Joe. I don't think the unions are going to take it lying down, or indeed a number of labour organisations. The reality is, they will see this as an impingement on the right to strike in the UK and UK Government is already under attack in relation to the unfair dismissal laws around whether it enshrines a right to strike in UK law and therefore one can expect to see a challenge by one of the unions through the courts, one would expect, and they will do that relying upon international labour organisation norms in relation to the right to strike and, perhaps, a challenge that I've seen mentioned, is whether it will place the UK in breach of the EU and UK Trade Cooperation Agreements where, of course, the UK indicated that it was a promise to protect labour law rights and not to diminish the same.”

Joe Glavina: “It appears that we’re in for a period of industrial unrest in the months ahead, and the unions evidently have momentum.  What’s the advice to employers?”

Jon Coley: “So, Joe, the key to my mind, as we've spoken about before, is preparation, pre-planning. It’s to sit down and work out as an organisation where you think, if you're heading for industrial action, the trade union can cause maximum disruption or maximum embarrassment with minimal effort, to have a think about where the trade union might target not even industrial action, but its leverage campaigns. Are there any events coming up which may be sponsoring, or relating to your ESG social responsibility agenda, which the union may target with protesters? In relation to industrial action are there particular pinch points within your organisation where if they pull out a few workers it can actually bring a much wider part of the organisation to a standstill and therefore working through what steps, as an organisation, you can take, and you can implement, in order to be prepared for when industrial action comes. We’d be happy to sit down and talk to you and, as I say, we have a contingency planning agenda which we've talked through effectively with a number of clients faced with an industrial unrest coming up.”

If you’d like to hear more on contingency planning and tactics to mitigate the impact of strikes and leverage campaigns, you can. Jon talked to this programme about that back in February in ‘Contingency planning key to 'business as usual' in face of strike action’. That programme is available for viewing from the Out-Law website.