Following the government’s announcement on 23 June 2022, a new law has now come into force to enable businesses to take on agency staff to plug staffing gaps caused by industrial action.
As of 21 July 2022, provisions first introduced in the Seventies preventing employment businesses from supplying agency workers to fill in for striking employees, or to fill in for employees who themselves are filling in for striking employees, have been repealed.
When the proposal to change the law was first announced, union leaders expressed concerns that the changes would erode the power of industrial action and therefore have a detrimental impact on employment rights. In June, leading recruitment businesses wrote to Business Secretary Kwasi Kwarteng urging him to rethink the proposals on the basis that they would only inflame strikes and not end them.
Comparison has been drawn between the idea of replacing striking workers with agency labour and the decision by P&O in March 2022 to dismiss its UK workers and replace them with cheaper, overseas agency labour, on the basis that both scenarios are similar mechanisms for employers to undermine employment rights. Whilst the government condemned P&O’s actions, Frances O’Grady, the Trades Union Congress general secretary, accused this new legislation of “doing a P&O”.
The proposals had been put forward by the Boris Johnson government before the prime minister agreed to step down.
Tania Bowers, Global Public Policy Director at the Association for Professional Staffing Companies (APSCo), said:
With the uncertainty of the ongoing leadership election, we believe this decision should at least have been delayed and time given to the new Prime Minister to consider this important change in legislation, particularly following the concerns that have been raised with us by so many recruitment leaders… While we recognise the desire to limit the disruption associated with staff strikes, other measures such as limiting this use of agency workers to replace striking workers to certain sectors and scenarios or only allowing this action to provide a skeleton crew, should at least have been considered. APSCo will continue to raise the concerns of our members with government about both the timing of this legislation change and, more importantly, the ramifications this change will have for workers and business into the future.
Twelve trade unions have now launched a legal challenge against the government on the basis that the change in legislation violates their responsibility to protect the right to collective bargaining and to follow international labour standards under the European Convention on Human Rights and the EU-UK Trade and Co-operation Agreement. The government has until 9 August 2022 to respond to the unions’ initial letter before the claim will be filed.
Meanwhile, Liz Truss, the current favourite in the Conservative leadership race, has stated her intention to take the legislative changes further and mandate a minimum service level during industrial action affecting critical infrastructure, such as action taken by teachers and postal workers.
It remains the case, however, that employment businesses and their clients will need to think carefully and consider their obligations towards the health, safety and welfare of their workers and the public before supplying or engaging agency workers to cover strike action. The impact of these legislative changes in real terms therefore remains to be seen, but with further rail strikes having been announced and upcoming industrial action planned across many other sectors, this is an issue which is likely to continue developing quickly.
