Government moves to repeal ban on agency staff for striking workers

The government has today [23 June 2022] formally announced legislation that will repeal the ban on agency staff covering for striking workers.

The move has been widely condemned. 

Subject to parliamentary approval, the changes would be made through a statutory instrument and are set to come into force over the coming weeks and will apply across England, Scotland and Wales.

Writing in the independent information source The Conversation this week, Tonia Novitz, professor of labour law at the University of Bristol, offered a reminder that a repeal of the law had been proposed previously and failed (see ANALYSIS article).

Neil Carberry, CEO of the Recruitment & Employment Confederation (REC), said: “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. 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 & 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.”

Asked to comment on how the REC and its members planned to respond to any requests for agency support, Carberry said: “Right now, all the REC’s efforts are focused on avoiding a change in the law to allow agency staff to replace striking workers. If this change does go ahead, we 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.”

Legal observers offered another perspective. Philip Richardson, partner and head of employment law at Stephensons, said: “There are many that will see this pro-posed change in the law as a long overdue solution to a decades-old problem – a way to plug the gaps left by striking workers and ensure some continuity of service.”

That said, Richardson went on to say: “At the same time, there is a balancing act the government must perform here, and one not without its challenges. Legislating your way out of these situations could be regarded as undermining a worker’s democratic right to strike and stifling their civil liberties. Similar proposals have been made in the past but have never come to fruition – largely because of these reasons.

“For employers, there are obvious benefits in having access to agency workers in times of industrial action, but there would need to be a considerable amount of time and education required to ensure employers understand these law changes. There would also need to be thought put into which agency staff have the right skill set needed to perform certain roles. When it comes to it, there could be some push back from employers that this plan, in reality, may be more difficult to implement than it appears.”

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