Search

How can we help?

Icon

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.

The strike, is being dubbed as one of the biggest rail strike in modern history, has come about as a result of a breakdown in negotiations on pay and redundancies.

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.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

Pub
  • 07 February 2025
  • Corporate and M&A

Talk & Golf : Thinking of Exiting your Business?

Join Stuart Mullins, Partner at Clarkslegal, and Nicky Goringe Larkin, Managing Director at Succession Planning, for a morning breakfast talk on preparing your business for exit, followed by a round of golf at the Eyston Course at Caversham Golf Club.

art
  • 06 February 2025
  • Privacy and Data Protection

Cookies and Consent: the ICO’s Cookie Review

In the digital age, cookies play a crucial role in how websites operate and interact with users.

art
  • 05 February 2025
  • Corporate and M&A

Growing Pains for Businesses

This thought piece considers some of the key issues and pain points facing a business planning to scale up

art
  • 03 February 2025
  • Employment

Indirect discrimination: How mandated office returns could discriminate against working mothers

In this article though, we will focus on one of the biggest potential hurdles, and the one that is garnering the most media attention and the most criticism. Is a return to work policy discriminatory on grounds of sex?

art
  • 24 January 2025
  • Privacy and Data Protection

UK Data Protection: A look back at 2024 and what to expect in 2025

On 15 January 2025, Louise Keenan and Shauna Jones hosted our webinar “UK Data Protection: what happened in 2024 and what’s in store for 2025.” Our webinar is available for you to watch, but in this article, we will provide a brief summary of what was discussed.

art
  • 22 January 2025
  • Corporate and M&A

Deal Announcement: Clarkslegal’s Corporate team advise founder on exit from Bristol based hospitality business

Clarkslegal is pleased to have advised the exiting shareholder and director of a hospitality business in the South West on the sale of their shareholding and termination of their employment.