Agency workers as strike breakers
As our clients within the recruitment industry will be aware, regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 20013 states as follows:
7 Restriction on providing work-seekers in industrial disputes
(1) Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform—
(a) the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or
(b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker,
unless in either case the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action.
(2) Paragraph (1) shall not apply if, in relation to the first worker, the strike or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992.
In plain English, recruitment companies are prohibited from supplying agency workers to fill the role of a person taking part in official industrial action or to fill the role of a person who is covering for a colleague who is participating in official industrial action unless the agency did not know (and did not have reasonable grounds to know) that it was doing so.
This month, the government as introduced a Bill to reform various aspects of the law on industrial action, trade union obligation and activities. The Bill, if passed, will amongst other things:
1. Change the voting thresholds when a union holds a ballot as to whether industrial action should take place, meaning that higher levels of member support for the action will need to be demonstrated before industrial action can be lawfully carried out.
2. Union supervision of picketing in order for such action to be lawful.
The government’s stated aim is to ensure that strikes are only ever the result of a clear, democratic decision and wishes to tackle the disproportionate impact of strikes in important public services.
In addition, BIS launched a consultation on 15 July 2015, seeking views on the repeal of regulation 7 of the Conduct Regulations as part of this aim. It states in the consultation document (which is available to view here) that banning employers from hiring agency staff to provide essential cover during strikes is a nonsensical restriction. We have to agree. In practical terms however, how many agency workers would wish to cross a picket line in order to perform a temporary assignment?
The closing date for consultation responses is 9 September 2015, thereafter the government will publish a summary of responses and the next steps to be taken.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at firstname.lastname@example.org.