Supplying agency workers during industrial action

During recent weeks there has been a noticeable increase in publicity for large-scale, high-profile industrial action either being discussed or realised. The recent rail strikes are one such example, greatly impacting upon businesses and workers alike. Since 1976 it has been prohibited to apply agency staff during a strike, but in response to what they describe as ‘burdensome legal restriction’, the Government has drafted and is seeking approval of the Draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which will allow agency staff to be provided to directly replace those staff on strike.

Current restrictions and legislation

Current restrictions on employment agencies during strikes are found in Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (the Conduct Regulations). The restrictions are in place to prevent an agency (or similar) from supplying temporary workers to cover for workers taking part in industrial action. The restrictions only apply to the employment agency, not the employer, but would not apply if the agency does not know and has no reasonable grounds for knowing, that the workers they supply are replacing those on strike. A breach of the Conduct Regulations amounts to a criminal offence, punishable by a fine to an agency that breaks this rule.

There are no restrictions on the employer moving staff internally or hiring new staff directly to cover for striking workers.

Separate legislation is in place in Wales under the Trade Union Wales Act 2017, which the UK Government also intends to repeal.

Proposed changes to legislation and initial reactions

A Statutory Instrument (SI) to repeal Regulation 7 of the Conduct Regulations has been laid before parliament on 27 June 2022 and requires approval from both Houses of Parliament before it is made. Previous attempts to remove the current legal ban have been attempted, most notably in 2015, but have not been successful due to impact assessments not being fit for purpose.

The Government is keen to express that the change in legislation will give businesses impacted by strike action the freedom to access skilled, temporary agency staff at short notice to cover essential roles for the duration of a strike and that it would not prevent workers from taking part in lawful industrial action.

There have, however, been vocal reactions to repealing Regulation 7 from Trade Unions and Academics. The TUC General Secretary commented on the proposed changes, expressing concerns that “bringing in less qualified agency staff to deliver important services will endanger public safety.” Keith Ewing, Professor of Public Law at King’s College London, has expressed concern that the repeal could be in breach of an International Labour Convention.

Maintaining health and safety standards

An overriding concern ahead of the potential repeal of Regulation 7 voiced by trade unions, IOSH and others, is that the use of agency staff must not threaten standards in health and safety. It is essential that businesses and self-employed people using temporary workers must provide the same level of health and safety protection for them as they do for employees; but it is also essential that where workers provide a service to the public, standards are maintained.

Providers of temporary workers and employers must cooperate and communicate clearly with each other to ensure risks are managed successfully. There should be no assumption that the ‘other side’ will take responsibility.

Under the Conduct Regulations (elements that are not due for repeal), agencies and businesses that use workers supplied by them must exchange the information they both need to ensure the safety of workers. Both parties should ensure the following items are considered and suitable arrangements put in place:

• Before temporary workers start, ensure they are covered by risk assessments and they know what measures have been taken to protect them
• Ensure they understand the information and instructions they need to work safely, and have had any necessary training
• Consider the language needs of temporary workers who do not speak English well or at all
• Before they start, check whether they have any occupational qualifications or skills required for the job
• Agree on arrangements for providing / maintaining any personal protective equipment, display screen equipment eyesight tests, and any necessary health surveillance
• Agree on arrangements for reporting relevant accidents to the enforcing authority – usually HSE or the local authority

Further guidance and support

The landscape of legislation between health and safety and employment law continues to change following the events of recent years and it is logical to expect that post-Brexit and post-pandemic reactions will continue to impact on our workplaces. SSG provide a range of health and safety, HR and ISO services, including training and consultation, that can support you in remaining current and compliant.

Source: Dave Wright, GradIOSH