The Government is currently consulting on whether employers should be allowed to bring in agency workers to cover for striking staff. When this practice was temporarily brought in from July 2022, it led to controversy and legal challenges. The current consultation aims to gather opinions from various stakeholders, including employment businesses, unions, and workers, but the effectiveness and potential negative consequences of using agency workers during strikes remain uncertain. We take a look at what all this means and what employers should be considering.
The issue of whether employers can – or should – bring in agency temps to cover for their striking workers is again in the spotlight due to a new Government consultation (closing on 16 January 2024). Those watching closely will know this is the latest chapter in an on/off saga.
How we got here
Hiring agency temps to cover for strikers was outlawed in the UK in 1973 and this remained the position until July 2022. At that stage, the Government relaxed the rule, removing Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. At a stroke, what had been illegal was now OK. But it was not necessarily that widely used and remained highly controversial. Unions clubbed together and mounted a legal challenge via judicial review, arguing that the new law (dubbed by one union leader as a "scabs' charter") infringed their members' right to strike and had been rushed in without adequate consultation.
The court agreed with the unions about the consultation. It was "irrational" the Court said, that then-Business Secretary Kwasi Kwarteng had relied on a consultation done seven years earlier in 2015. Therefore, the unions' challenge succeeded although the court swerved the wider argument about whether there was infringement of any right to strike: the lack of consultation was enough to conclude this particular case. As a result, the ban on agency workers covering strikes came back from 10 August 2023 and is still in place today. This current consultation though shows there's still appetite from Government to change the law and remove what they say is an unnecessary restriction on a business's freedom to operate in a more flexible labour market.
What does it mean for employers?
This consultation is an opportunity for employers to get their voice heard: the Government says it particularly wants to hear from "employment businesses and hirers, agency workers themselves, employees or workers who may be on strike and replaced by agency workers, as well as business and worker representatives". Unionised employers might well want a world where they can import agency workers on strike days. Even if they hope they don't need it – it would appear to increase the options available and strengthen the employer's bargaining power in any dispute. But does the recent experience and data support that this measure would help employers? That is uncertain.
During the period of relaxation on agency workers' use (July 2022 to August 2023) there were still a lot of strikes. In a small number of reported disputes, agency workers were deployed by the relevant employer. These examples were "called out" by the relevant unions and attracted negative headlines, quite separate from the rights and wrongs of the original dispute. It is also interesting that some of the biggest household names among employment businesses have disassociated themselves from this practice; their trade body the Recruitment and Employment Confederation (REC) wants the ban to stay. With more than 10,000 employment agencies operating in the UK though and with many of them being small businesses, there's a commercial opportunity there.
It does not feel as if agency workers provide a "silver bullet" for employers - even if the law was changed tomorrow. Practically, it may be only in certain types of jobs, or certain sectors (perhaps in less skilled roles) that agency workers could make a meaningful contribution during an industrial dispute. And the cost of this for some employers who already tried it was negative publicity and reputational damage.
What can employers do now?
Employers concerned about the risk of strike action should make contingency plans to keep the show on the road throughout an industrial dispute. Depending on the skill level of the roles that need to be filled, agency workers might not, in any case, provide an answer. Employers can (and have always been able to) hire casual labour to fill gaps left by strikers as long as they hire them directly and not via an agency. Employers could also turn to a service provider (i.e. sub-contract part of a service). Recent leavers, managers returning to the shopfloor or women on a KIT day could also be part of an overall resilience plan, and employers may continue to make use of any agency workers who are already on site under "business as usual" arrangements -- as long as they're not specially deployed to cover for absent strikers.
