6 ways to lawfully cover workers on strike

This week on the 21, 23 and 25 June, more than 40,000 RMT union members from Network Rail and 13 different train firms, as well as 10,000 more workers on the London Underground, plan to go on strike. The strike, which is being dubbed the biggest rail strike in modern history, has come about as a result of a breakdown in negotiations on pay and redundancies.  

Disruption from the strike is expected to carry over into non-strike days during the week, when only about 60% of services are expected to run. On the strike days themselves, only a fifth of services will run.

What can employers whose workers are due to strike do?

There are several options permitted by law which allow the employer to keep its business operational during a strike:

• Outsource impacted business functions to a third-party contractor on a temporary basis.
• Use existing employees or casual workers from other parts of the business to cover the tasks of the striking workers. Employers should first ensure however that there would be no health and safety risks in doing so, and that the employees’ contracts would allow this.
• Use any of its workers, including any agency workers, to replace workers who are absent during a strike but who are not taking part in the industrial action.
• Use an employment agency to find employees for the employer to employ directly on a short-term basis.
• Directly engage temporary workers without using an agency.
• Use agency workers once the strike has finished to help clear any backlog.

The one thing employers may not do is use agency workers supplied by an employment business to cover the duties normally performed by an employee who is taking part in a strike or other industrial action.

This restriction extends further in that agency workers cannot be used to cover the work of an employee who is covering the duties of a striking employee either.

The only way employers can use agency workers supplied by an employment business, is where they already use these workers, and the workers simply carry on during the industrial action, doing the work they were originally supplied to do.

Having said this, in the days leading up to this week’s RMT strike, Grant Shapps the Transport Secretary announced that the Government is looking at changing the law, to allow employers to use agency staff to cover the tasks of workers who are on strike.

No laws have changed yet, so the position for the moment remains the same. However, any changes to the law to allow employers to use agency staff during times of industrial action would be significant for employers, as it would make industrial action much less effective. We therefore predict there would be staunch opposition to such a change.

Although such a change would be welcomed by most employers, it is no silver bullet. Taking the upcoming rail strikes as an example, many of the striking staff such as signalling operators, drivers and guards hold safety-critical roles which cannot easily be covered by agency staff.

Additionally, the country is facing a massive staffing shortage currently, with vacancies at an all time high. So even with a change in the law, the task of finding enough agency workers to cover for striking railway staff where the country is already struggling to find enough workers to staff airports, will be difficult!.

The same can be said of covering the teaching and NHS staff whose unions are also currently warning of strike action. The NHS for example is facing a deepening staffing crisis, with the number of unfilled posts across health services in England rising to over 110,000.

Our employment solicitors will be following developments closely and are happy to speak to you regarding any concerns you may have about collective bargaining or industrial action within your business.