23 June 2022
The UK government today unveiled a change in the law enabling businesses to supply skilled agency workers to plug staffing gaps during industrial action.
The announcement comes amid the biggest dispute on the railway network since 1989.
It was first reported on 13 June that the government was preparing plans to repeal a legal ban on agency workers filling in for workers who are on strike.
Under current trade union laws, employment businesses are restricted from supplying temporary agency workers to fill duties by employees who are taking part in strikes. Section 7 of the 2003 Conduct of Employment Agencies and Employment Businesses Regulations prevents employment businesses from supplying or introducing an agency worker to an employer to perform the duties of a striking worker.
The government noted in its announcement that this restriction can have a disproportionate impact, including on important public services, causing severe disruption to the UK economy and society, from preventing people from getting to work to creating challenges for how businesses manage their workforce.
The legislation announced today repeals the legal restrictions but the proposed changes still require Parliament’s approval.
“Removing these regulations will give employers more flexibility but businesses will still need to comply with broader health and safety rules that keep both employees and the public safe. It would be their responsibility to hire cover workers with the necessary skills and/or qualifications to meet those obligations,” the government stated in its announcement.
“It would also help mitigate against the impact of future strikes, such as those seen on our railways this week, by allowing trained, temporary workers to carry out crucial roles to keep trains moving. For instance, skilled temporary workers would be able to fill vacant positions such as train dispatchers, who perform vital tasks such as giving train drivers the signal they are safe to proceed and making sure train doors aren’t obstructed,” the announcement continued.
Subject to parliamentary approval, the changes announced today are made through a statutory instrument and are set to come into force over the coming weeks and will apply across England, Scotland and Wales. The change in law will also apply across all sectors.
The recruitment industry and trade unions, including the Recruitment and Employment Confederation, the World Employment Confederation and The Association of Professional Staffing Companies, have previously issued warnings on repealing the legal restrictions.
Neil Carberry, Chief Executive of the Recruitment & Employment Confederation, said of today’s announcement, “This change is being made with no consultation of the people it affects most – agencies and agency workers. It is not something agencies want, and will not achieve the goals the government claims. This is a fundamental change to the regulations that govern recruitment businesses, and the industry is strongly opposed to it, it is not a pro-business move. We urge government to drop their plans and think again.”
“In practice, this change in legislation will not work. Inserting agency workers into strikes will only lengthen disputes,” Carberry said. “It will also not provide the workers that government wants, and it puts agencies and agency workers in a very difficult position, with potential health and safety and reputational risks to consider. Agency workers are in high demand, and most will not choose a job that forces them to cross a picket line over another where they do not have to.”
Regarding plans in place for the change in law, Carberry has said the REC “would advise REC members to tread very carefully, given the potential risks to their businesses and agency workers. Going forward we would consult with our members on any potential changes to our Code of Professional Practice.”
Tania Bowers, Global Public Policy Director at APSCo said that at policy meetings “members of all sizes, covering all sectors were unified in their disapproval of the government’s intentions, so we anticipate that a change to the code would be supported by our members in due course.”
“In a very skills-short market, skilled workers, such as train drivers, are unlikely to be ‘on the bench’ and readily available,” Bowers said, adding that no changes should be made without properly consulting the recruitment sector.
APSCo and APSCo OutSource have written to Kwasi Kwarteng MP, Secretary of State for the Department for Business, Energy and Industrial Strategy (BEIS), as well as Minister Paul Scully MP, Grant Shapps MP and DLME Margaret Beels, calling for a consultation with recruitment sector leaders before the agency workers’ legislation is amended.
“In our response to BEIS and relevant ministers, we’ve clarified that APSCo UK and OutSource representatives are keen to meet to discuss the proposed legislative solution that the Government has outlined. It is our view that the voice of the recruitment sector needs to be heard in this matter and discussions are needed around how such a proposal would stand in the context of international labour standards,” Bowers added.
“Our members are also keen to have sight of more detail regarding the reference to agency workers and “transferable skills” to replace striking workers,” Bowers said. “Given the significance of the proposed legislation, we have brought the concerns of our members to the Government and will continue to work with other recruitment leaders who are calling for a review of these changes before they are implemented. As we’ve previously stated, we are sceptical about the impact of removing the prohibition on agency workers replacing strikers, or those workers moved to replace strikers.”
In the announcement today, Business Secretary Kwasi Kwarteng said, “Repealing these 1970s-era restrictions will give businesses freedom to access fully skilled staff at speed, all while allowing people to get on with their lives uninterrupted to help keep the economy ticking.”
Transport Secretary Grant Shapps said, “Reforms such as this legislation are vital and will ensure any future strikes will cause even less disruption and allow adaptable, flexible, fully skilled staff to continue working throughout.”
A Network Rail spokesperson said, “This is welcome news and could help us to offer a better service to our passengers during strike days if this dispute drags on. While key safety-critical roles require many months of training, there are many other roles where they could be used, such as in security operations, which would make a real difference.”
Angela Rayner, Labour’s Deputy Leader and shadow secretary of state for the future of work, criticised the announcement, “The government appear to have learned nothing from the P&O scandal, which resulted in multiple safety failures and the grounding of vessels.”
Separately, the government also announced today 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. The caps on damages, which have not been changed since 1982, will be increased. For the biggest unions, the maximum award will rise from £250,000 to £1 million.
The provision of temporary agency workers to replace strikers has long been illegal in most developed economies, as well as many undeveloped ones.
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