Legal firm Brabners Chaffe Street has issued guidelines for agencies supplying temporary workers in the midst of strike action.

Agencies are prohibited by regulation 7 of the Conduct Regulations 2003 from providing temporary workers to end-user clients to replace workers participating in an official strike or official industrial action.

In addition, recruiters are also prohibited from replacing individuals who have themselves been transferred by the client to perform the duties of the person on strike or taking industrial action.

 Brabners Chaffe Street’s do’s and don’ts are:

Do
·     Find out whether the workers who are to be supplied are being requested to do the duties normally performed by the workers involved in the strike or industrial action;
·     Discover whether workers that are being supplied are required to replace existing workers at the end-user client who have been moved by your client, to carry out the work usually undertaken by the workers involved in the strike or industrial action;
·     Send a letter to the end-user stipulating the basis upon which the temporary workers are being supplied, confirming the aforementioned points.
 
Do Not
·     Supply temporary workers without first working out whether or not the end-user client is involved in official industrial action;
·     Provide temporary workers where you are aware or have reason to believe that they are required to carry out duties normally performed by workers involved in the industrial action or to replace existing workers who have been moved to carry out the work usually undertaken by the workers involved in the strike or industrial action.
 
In terms of what constitutes a strike or industrial action and so will trigger the obligations under regulation 7, a strike or other form of industrial action will not be official, and so will not trigger these obligations unless:
1. The worker(s) involved is a trade union member, and the action is authorised  
    or endorsed by that union; or
2. The worker(s) involved is not a member of a trade union but they are among participants in the industrial action with members of a trade union by which the action has been authorised or endorsed.  

The guidance concludes: “Provided that you act in accordance with these suggestions then it is highly likely that you would enjoy the benefit of the defence and have the ability of arguing that you did not know and did not have reasonable grounds for knowing that your temporary workers were being used by your client in ways prohibited by regulation 7.”