Green light for agency staff use during strike action

A new law, ‘The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022’ came into force on 21 July, which has the effect of allowing employment businesses to supply agency staff during strike action.  

Prior to the 21st July, employment businesses were not allowed to supply agency workers to employers to carry out the duties of employees who were taking part in official industrial action or to cover the work of employees who are covering the duties of striking employees.  

Where employment businesses breached these rules, this amounted to a criminal offence – meaning the business could be prosecuted and fined.  

An employer who commissioned the supply of agency workers could also be found guilty of the ‘common law’ criminal offence of aiding, abetting, counselling, or procuring that offence.  

Change in law on agency staff

The change to the law which came into effect on 21st July allows a business affected by official industrial action to take on agency staff to cover the striking workers.  

This change will likely result in industrial action becoming much less effective. There is understandably therefore already staunch opposition to the change – UNISON for example, has announced that it intends to challenge the new law in the High Court.  

It is important to remember that although the change will reduce the effectiveness of industrial action, it will not eliminate all hurdles for employers. Many roles cannot easily be covered by agency staff due to the skillsets required of the role holder. Safety critical roles cannot easily be covered by agency staff either, as businesses will still need to comply with their health and safety obligations, and will therefore need to ensure that any agency staff they take on have the necessary training and qualifications to be able to carry out safety critical work.  

Agency workers with the specific skills and qualifications are unlikely to be bountiful at a time when the country is facing a massive staffing shortage.  

As well has the agency worker law changes, the Government has increased the cap on damages that can be sought against a union where strike action is found to be unlawful. The caps depend on the size of the union. They used to range from £10,000 to £250,000, but as of 21st July 2022 onwards, the cap increased to £1 million for the largest unions with 100,000 members or more.  

Further information

All companies need to be prepared for the unexpected, our employment solicitors can help organisations identify and prepare and provide a rapid response to industrial relations issues, whilst also strengthening employee engagement. Find out more about our industrial relations and trade unions services.