20 June, 2022
The current legal position surrounding business disruption caused by industrial action is that if your business faces industrial action, employers are unable to recruit agencies to supply workers specifically to cover work that is not being done by lawful industrial action, however, that could soon be set to change.
It is common knowledge that there will be rail strikes across the U.K. this week on Tuesday 21st June, Thursday 23rd June and Saturday 25th June. The disruption this week has been quoted by the Guardian as being 'the biggest rail strike in 30 years.' In addition, a separate London Underground strike will take place on Tuesday. The Transport Secretary Grant Shapps stated to the Telegraph in May that the current legislation could be reversed, meaning that employers would be able to hire agency workers to cover those staff participating in industrial action and not only would this apply to the rail sector but all sectors.
Mr Shapps noted that this would not affect the rail strikes scheduled this week, but should action continue then further measures would be put in place. The Transport Secretary also stated that workers could potentially also be banned from working overtime to make back lost pay during industrial action and could even investigate implementing laws that could make industrial action illegal, unless a particular number of staff are working.
The positive implications of allowing employers to hire agency workers is that it prevents disruption to business allowing it to continue as 'business as normal,' and fulfil contracts with their clients. In regards to the transport sector specifically, this means that the general public will not be affected and will be able to travel to work as normal.
The potential negative implications of the Transport Secretary's suggestion are that hiring agency workers to cover those who are striking is not addressing the real problem at hand and are not finding workable solutions to employees' concerns over their pay, terms and conditions in their contract and redundancies.
There is also the wider issue at play of the great resignation and current recruitment crisis, which can be evidenced by the current challenge of understaffing at airports. Therefore, it is uncertain as to how employers would find enough agency workers to fill the shortfall left by those striking in the first place.
The manufacturing sector is still a heavily unionised sector and with the potential for strike on pay rises with the cost-of-living crisis, the change in regulations may give some employers comfort that the delays to producing that could be caused by strikes may be minimised, however, the cost of agency workers may be prohibitive.
A potential drawback of hiring agency staff to cover the shortfall for those participating in industrial action is that there may be concerns over health and safety. Employers should pay close attention to their health and safety policies and procedures and ensure that any agency staff are trained as thoroughly as those who work for the company full time, especially in industries such as manufacturing where a small error or lapse of concentration can lead to catastrophic consequences. This would ensure that staff do not make claims under s.100 of the Employment Rights act for Health and Safety or potential personal injury claims, which do not require requisite service.
Employers should also ensure if they decide to use recruitment agencies, it is extremely important that the business has Terms and Conditions in place that work for the business. The Terms and Conditions should be negotiated with the agencies rather than simply accepting terms denoted by the agency.
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