Will the government repeal the ban on agencies supplying workers to fill in during strikes?

As many commuters will be aware, the RMT rail union has announced that it will be calling on over 50,000 railway workers to take three days of strike action next week. The strikes will be in response to rail employers’ failure to agree a suitable pay proposal with the union and are expected to be the worst on the rail network since 1989.

Mr Shapps confirmed to the Sunday Telegraph that the government was considering introducing legislation to repeal the ban on agencies supplying workers to fill in for striking staff. This follows similar proposals in 2016, which were ultimately dropped before a wider package of proposals was enacted as the Trade Union Act 2016.

As the ban is contained in secondary legislation, the government will be able to quickly pass the necessary legislation to repeal it - if it decides to go ahead with the plan. This will be the most significant change to employment legislation in many years, despite many consultations and other proposals which have gone nowhere (see our article from last summer on employment law reform, and our recent article on the Queen’s Speech).

What’s the current legal position?

All staffing suppliers (including recruitment agencies and other providers of contingent workers) are subject to a statutory compliance regime that is primarily set out in the Conduct of Employment Agencies and Employment Businesses Regulations 2003. These regulations are designed to protect both agency workers and the businesses seeking to engage them (i.e. employers). For more information about the statutory compliance regime please see our Inbrief on staffing solutions and the supply of labour.

Staffing suppliers are prohibited from supplying any agency workers in the context of official industrial action to perform duties that are either: (a) normally performed by a worker taking part in a strike or other industrial action; or (b) normally performed by any other worker who has been assigned by the employer to perform the duties of a worker taking part in a strike or other industrial action. Breach of this regulation is a criminal offence. Unions have successfully relied on this legislation as a basis for seeking orders from the courts prohibiting employers from using agency workers while industrial action is taking place.

In practice, this means that employers facing industrial action cannot easily mitigate against its effects by hiring agency workers. In particular, it is common practice for unions to write to agencies that usually supply workers to employers in order to put them on notice of its industrial action and remind them that it would be a criminal offence for them to supply workers in breach of the law.

What will the changes mean in practice?

As no draft legislation has been published, it is not clear whether the current ban will simply be struck off the statute books or whether the government is considering a temporary measure. Potentially the removal of the ban will only apply to important public services - defined in the Trade Union Act 2016 as health services, education for those aged under 17, fire services, transport services, border security and nuclear decommissioning.

Agency workers continue to be a key part of many employers’ workforce strategy, particularly as a route to recovery from the impacts of the Covid-19 pandemic. Those employers who do face industrial action may find the changes useful, but only if suitable agency workers can be found. Its importance in sectors requiring highly skilled workers, such as the railway sector, might be relatively insignificant due to a shortage of suitably trained staff - despite the impetus for this reform being a planned railway strike.

Is it likely to go ahead?

Mr Shapps has already confirmed that any legal changes wouldn’t take effect in time for the strikes next week. Perhaps the government is going to wait until after the inevitable chaos to garner public support for its 2015 manifesto pledge that it will “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”. If industrial action continues this summer, watch this space.