• Richard Beschizza

Repeal of agency staff restrictions

Following the government’s announcement on 24th June that it plans on introducing legislation letting employment businesses supply temporary workers to plug staffing gaps during industrial action, we take a look at what this change will be like in practice and any long-term effect it might have on ambitions for strike action and an employer’s ability to ‘weather the storm’.

In June, rail workers supported by the RMT attracted a lot of attention. This wasn’t only because of publicity and how heavily the strike action was reported in the media but because of the tangible effects that the strike action had on the wider public, with huge delays on transport links and country-wide cancellations of many train journeys.

The strike action was agreed upon by the RMT and its members in response to what is understood to be below-inflation pay rise offers and the threat of compulsory redundancies – which the union warns would create safety risks on Britain’s railways. Coincidentally, this kick-started a trend across an entirely different industry, where similar pay and working conditions were the catalyst for many barristers across England & Wales to stage pickets outside courthouses.

Whilst the effect of strike action on any one individual or commercial organisation is specific to the individual’s personal circumstances, the UK Government seemingly intends to ‘level the playing field’ and attempt to bring further balance to the effect union activity might have.

One such change that has been proposed is the repeal of the ban on agency workers covering for striking staff, currently laid out in the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

However well intended such a change may appear to be, the government recognises that the primary concern about deploying any form of agency staff is ensuring that they are adequately skilled and qualified to do the role.

Health and safety implications aside, the degree to which these changes will be beneficial depends very much on an individual standpoint. Of course, it will increase employer scope to cope with strike action by providing more flexibility, and ensuring additional train services are running will have a downstream positive effect on those trying to commute to work on a day of strike action.

But whilst it will allow employers to batten down the hatches and ‘weather the storm’, will the changes potentially serve to undermine - either deliberately or inadvertently - the purpose behind strike action by lessening the effect it will have in the first place?

Does strike action become toothless when the gap can be plugged? Assuming agency staff are primed and ready to go and can be easily deployed, how will this affect the balance of power when a union is trying to negotiate the best deal for their members and can’t lean into strike action’s recognised and intended effect - to put pressure on an employer to try and remedy industrial and employee relations.

We might simply see the change further compound hostilities by diluting or outright removing the impetus that was formerly in place to get a deal over the line.

That having been said, it is inaccurate and an unfair assessment to say that at the moment, an organisation subject to strike action is going to be completely incapacitated. Whilst the regulations currently prevent an agency from supplying a company with temporary workers to perform duties normally carried out by striking workers, employers can already circumvent this by employing staff directly.

The change will be made by a statutory instrument (which has yet to be published) and will come into force in England, Scotland and Wales ‘in the coming weeks’.

The changes proposed aren’t simply limited to loosening the restraints on agency staff mobility; there are also plans to significantly raise the maximum damages that can be awarded against a union arising out of unlawful industrial action.

The caps in question vary with the union’s size and currently range from £10,000 to £250,000.

However, from 21st July 2022, the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 will come into force, raising those limits.

The minimum award of £10,000 for unions with fewer than 5,000 members will increase to £40,000; the £50,000 award for unions with a membership of between 5,000 and 25,000 will go up to £200,000; the £125,000 award where union membership is between 25,000 and 100,000 will rise to £500,000; and the maximum award, for unions with more than 100,000 members will rise from £250,000 to £1 million.

It will certainly be interesting to see the reality of the changes and indeed only time will tell.

It can sometimes be hard to keep up with changes to the law, some of them quite complex, and employers may be wondering what this means for them. For those businesses worried about impending labour disputes, these new changes may significantly alter their perspective and tactics in any industrial action, but it is important that they fully understand what they can - and cannot - do. Getting expert legal advice on their options is something that can really help a business facing these kinds of problems and doing so early is highly recommended.