Government confirms plans to remove ban on agency workers covering striking workers

Will allowing agency workers to cover for striking workers help businesses?

According to The Times, the government intends to repeal the ban on recruitment businesses supplying agency workers to replace employees while they are on strike. While the timing of the announcement may well be linked to rail strikes starting this week, the change is unlikely to be limited to any particular sector. The government will be able to make this change quickly because the prohibition, which has been in place for over 45 years, is contained in Regulations rather than an Act of Parliament. Legislation is expected to be tabled this week and the change could be in force by July. 

There are three important practical matters which will affect the likely impact of lifting the ban. 

• First, while it will enable employers preparing for possible industrial action to remove the square on their planning grid about covering striking workers, it doesn’t resolve the problem that led to the dispute between the business and the employees in the first place. So while it might reduce disruption in the short-term, it is not a long-term solution. Employers using agency workers would also have to be very careful about how they handle relations with striking employees, while keeping in mind their responsibilities to agency workers who are likely to face considerable hostility.
• Second, the ban has only ever covered official strike action: that is strikes that are authorised or endorsed by trade unions. Unions have been expecting this change and businesses can expect an increase in actions away from the workplace, such as protests and leverage campaigns targeting investors and business reputation.
• Third, most of the days lost to strikes involve big employers who would need to engage large numbers of agency workers at the same time to mitigate the impact of the strike to any meaningful extent. In the public sector, the pool of qualified train drivers or teachers, for example, available and willing to cover for striking employees is not big enough to make a significant difference. Agency workers in the private sector have other options in the current labour market that do not involve crossing a hostile picket line. 

Lifting the ban could also lead to a rise in alternative forms of industrial action, such as working to rule, overtime and call-out bans or go-slows. These may have less of an immediately impact than strikes but they are easier for unions to sustain over a longer period because the workers taking part still receive at least some of their usual pay.

Unsurprisingly, the announcement has already been sharply criticised by the major UK trade unions. It is likely that the unions will refer this change to the International Labour Organisation for a finding on whether it puts the UK government in breach of international law. There may also be challenges through the domestic courts and ultimately to the European Court of Human Rights that it puts the UK in breach of the European Convention on Human Rights.

In this context, it is perhaps not so surprising that despite the employment agency sector standing to see an increase in demand from the change, the Recruitment and Employment Confederation (REC), which represents thousands of UK recruiters including many of the biggest agencies, has joined the TUC in strongly opposing it and calling for it to be abandoned. The REC itself and most large recruitment agencies are signatories to a global compact pledging them not to recruit workers to replace striking employees.

Contact Russell Dann if you need advice on employee relations, including engagement mechanisms, pay negotiations, trade union recognition and industrial action.