With a summer which has seen transport strikes and subsequent disruption to businesses, employees and customers, it is of little surprise that we are now witnessing the latest review of the reach of trade union rights, obligations and activities in the UK. Earlier this year the government published its Trade Union Bill which contains proposed reforms to increasing ballot thresholds, extending the notice of industrial action required to be given to employers and a new expiry date for action to be taken following a ballot. The Bill would also introduce tougher requirements for unions to supervise picketing.

In its April 2015 Conservative Party manifesto a further aim of the government was also to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”. Over the summer it published a consultation seeking views on the removal of this provision and, in the words of the consultation, to “allow employers facing industrial action to hire temporary workers from agency businesses who would then be able to perform some of the functions not being carried out due to industrial action”. That consultation ended on 9 September and we are currently awaiting the government’s response.

What is the current position?

Currently Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Regulation) prohibits employment businesses from providing agency workers to cover either the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, or to cover work of an employee who themselves are covering the duties of an employee taking part in a strike or other industrial action. This Regulation has somewhat reduced the flexibility of a hirer employer’s staffing options during industrial action, and has had a concurrent impact on the continuity and cost of business.

However, this does not mean that other options are not available to employers to maintain an operational business during a strike. These include using existing staff to cover striking employees (provided their usual work is not then done by agency workers during the strike), engaging or employing temporary workers directly, or outsourcing work to an external provider.

Potential impact on hirer employers if the Regulation is repealed

Whether the proposed repeal of the Regulation will bring about a new flexibility for employers in the choice of workforce it can engage during a strike and so reduce the unions’ power during strike action is not clear cut. Repealing the Regulation will broaden the pool of labour from which a hirer could draw upon to include agency workers. Central to any recruitment decision is ensuring that the individual is compatible with, and suitable for, the assigned role and the wider business. Particular roles to cover a particular striking employee require ‘‘like for like replacements’‘ especially where the role is specialised either in terms of either the operational skills required for a role or the knowledge of the business required for externally facing customer or sales roles.

Revoking the ban could have implications for health and safety standards in certain industries. Using an agency worker to cover a role which requires knowledge of a particular procedure e.g. operating complex machinery would require an employer to ensure that its duty of care to its workforce and responsibility for the health and wellbeing of its employees is not being compromised. Employers would be well advised to ensure that health and safety standards are revisited and to further ensure that there is a control mechanism in place to prevent breaches. Unions have commented on inexperienced agency workers delivering a lower quality service could have unintended repercussions.

Striking employees, through their absence, present a cost to the business. This might, in certain situations be ameliorated by recruiting agency workers to cover roles during the strike and so reducing the impact on business operations. They could potentially be engaged on different, lower rates compared with existing employers so lowering wage bills. However an element of such savings may be offset by the need to train replacements in affected roles.

Employment relations between employers, their staff and unions

Employment relations between employers, their staff and unions could become more tense. Bringing in agency temps could further undermine a strike and potentially prolong disputes. A poll conducted by the TUC last month found 66% of 1,700 people surveyed thought that employers using temporary workers as cover during strikes will give permanent workers less power to defend their pay and conditions at work. Trade unions may seek strategies to try to reduce the impact of agency workers on industrial action. Collectively, they could look to take action which falls just short of a strike, or possibly ‘‘partial performance’‘ and employees working to contract.

Potential impact on employment businesses and work-seekers

Revoking the ban to supply agency workers to cover a strike could create another source of job opportunities for its work-seekers and therefore be a positive development for employment businesses and their ability to increase revenues, and also provide greater work opportunities for the agency workers. It may also be an opportunity to strengthen relationships with senior management of hirer clients and broaden the range of services they can provide to clients. This may necessitate some UK employment businesses revisiting contracts which currently prohibit the supply of agency workers during strikes; others may be wary of possible reputational risk to their employment business of doing so or being drawn into external industrial disputes. Those employment businesses which also recognise trade unions would need to consider the impact on internal industrial relations when seeking their own agency workers to cover a hirer’s striking workers. Individuals who may be reluctant to accept such engagements could then face the risk of being passed over for subsequent allocations of work opportunities by the employment business or hirer.

October Revolution?

The Government proposes to respond to the consultation on the agency workers ban later this month and to set out a timetable for any reforms. There is already existing power to amend the Regulation so it could take effect in advance of the Trade Union bill being enacted. The Government is committed to tackling the disproportionate impact of strikes in key public services, but it remains to be seen whether a removal of the ban on engaging agency workers during strike action will wrestle the initiative back from the unions and into the hands of employers. There is already little legal restriction on employers either taking on new staff, moving existing staff or outsourcing work in the event of existing disputes. A closer examination of the potential impact of the ban being lifted suggests that this will not be a wholly adequate solution to employers’ staffing needs either, and that many more seasons of discontent may lie ahead.