With the recent dispute between Royal Mail and the Communications Workers Union (the CWU) affecting so many businesses and individuals, it is easy to

assume that the option of using agency workers to clear the backlog of post delayed by the strike was a sensible one.  However, the situation is never as straightforward as it seems and, the allegation that Royal Mail planned to use 30,000 agency workers to cover the work of staff who were on strike resulted in the CWU issuing proceedings against Royal Mail in the High Court.

Fortunately, Royal Mail and the CWU agreed to suspend strike action over the Christmas period and so injunction proceedings were avoided.  However, the dispute certainly highlighted the tricky legal situation surrounding the use of agency workers in circumstances where there is an official strike taking place.

The use of workers supplied by an employment agency is governed by the Conduct of Employment Agencies and Employment Business Regulations 2003 (the Regulations).  Regulation 7 makes it clear that employment businesses (those agencies who provide clients with temporary workers) are prohibited from providing agency workers to clients to replace individuals taking part in an official strike or official industrial action, or to replace individuals who have themselves been transferred by the client to perform duties of the person on strike or taking industrial action.

Accordingly, any agency who supplied temporary workers to Royal Mail during the strike in breach of the Regulations, was, on the face of it, committing a criminal offence.

Ignorance of the Regulations is no defence.  In fact, the only defence permissible in the Regulations is if the employment business can demonstrate that it did not know and did not have reasonable grounds to know that official action was taking place.  However, in view of the enormous publicity surrounding the recent postal strike, it is difficult to imagine any agency acting as an employment business being able to successfully argue that defence.

Enforcement of the Regulations falls under the scope of the Employment Agency Standards Inspectorate (the Inspectorate), which is part of the Department for Business, Innovation and Skills. One of the Inspectorate’s aims is to ensure compliance with employment legislation and so, if a complaint is made, the Inspectorate may carry out its own investigations which may include undertaking inspections of and/or visiting any agency.

Accordingly, it may be of concern to some agencies that one of the biggest unions, the GMB, set up a telephone hotline to enable members of the public to report the names of those agencies who were supplying staff to Royal Mail in the recent postal dispute. The general secretary of the GMB has already written to the Secretary of State for Business, Innovation and Skills to request that the Inspectorate investigates and enforces the Regulations. No doubt the GMB will continue to provide the Secretary of State with information on those agencies it believes are breaching the Regulations by supplying workers during any further strike action that takes place.

Investigations could take a matter of months, but if the Inspectorate finds that an agency has breached the Regulations then the agency could face a fine of up to £5,000 per offence and potentially a ten year ban from acting as an employment business. In addition, for the most serious breaches of the Regulations, the maximum penalty could be an unlimited fine.

To date, no successful prosecution has taken place under Regulation 7, but in view of the high profile nature of this dispute, the Inspectorate could come in for criticism if it is seen to do nothing in response to the breaches that have allegedly taken place. 

With that in mind, agencies who supply temporary workers may want to reconsider whether to do so during official strikes or industrial action, as it could prove to be costly.  Which agency would actually want the notoriety of being the first agency to face prosecution in what would inevitably be a high profile case? Adequate checks should be made by agency staff to avoid this risk arising, as turning a blind eye to the fact that workers being supplied will be covering for striking workers is not to be recommended.

Ashfords LLP