Can an employer use agency staff to replace striking workers?

The Government has announced changes to legislation that will enable businesses to supply skilled agency workers to plug staffing gaps during industrial action.

Currently, employment businesses are prevented from supplying an employer with agency workers to perform the duties normally performed by a worker who is on strike. This restriction applies during official industrial action. Breach of this restriction by an employment business is a criminal offence, punishable by fine. Although the restriction is on the employment business, there is a risk that an employer could be found to be liable for aiding and abetting that offence.

Use of agency workers during strike

The announced change repeals the “burdensome legal restrictions” and will allow employers to use skilled temporary agency staff to temporarily cover essential roles for the duration of the strike. The announcement comes on the second day of rail strikes by RMT Union members, but the change will apply across all sectors. The aim of the change is stated to be “to minimise the negative and unfair impact of strikes on the British public by ensuring that businesses and services can continue operating.”

The Government has also announced that 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. For the biggest unions, the maximum award will rise from £250,000 to £1 million.

The Recruitment and Employment Confederation issued a joint statement with the TUC earlier this week calling on the Government to abandon the planned change, calling it “unworkable” and opposing it “in the strongest possible terms.” They argue that agency staff are unlikely to choose a role that requires them to cross a picket line; that many roles that may be on strike require technical skills or training; and that inserting different workers into the middle of a dispute would inflame tensions.

The Government announcement states that the changes are due to come into force over the coming weeks, subject to Parliamentary approval.

Comment

Employers faced with strike action can consider a number of steps to enable work to continue, notwithstanding the current restrictions. These could include:

Using existing employees from other parts of the business (provided that their usual work is not then done by agency workers)
Employing new temporary workers directly, with or without using an agency
Carrying on using existing agency workers who were already supplied to the business, to do the work that they were originally supplied to do
Temporarily outsourcing particular functions to a contractor
Using agency workers to clear any backlog after the strike is over.

24 June 2022

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