Employers reminded that agency workers can replace staff who strike

Contractor recruitment agencies are legally permitted to supply workers to replace striking postal staff, railway crew, and ambulance drivers -- who walkout tomorrow.

In an update before the NHS drivers yesterday set a second strike on Jan 23, a law firm reminded its subscribers that introducing agency staff to cover strikers was ‘an option.’

But the firm, Chartergates, confirmed to ContractorUK that it isn’t suggesting agencies “have the power to solve shortages” in the NHS, on trains, or at post offices, caused by the strikes.

'Fast-moving'

Rather, the firm issued the update to its subscribers -- which includes agencies that supply IT contractors -- because “legislation in this area can be fast-moving.”

This explanation yesterday, by Chartergates’ Naseerah Mussa alludes to a past provision of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Specifically, Regulation 7 of the ‘Conduct Regs’ (as IT contractors affectionately term them) prohibited agencies from introducing or supplying agency staff to replace workers on strike.

But disappointing both the Recruitment & Employment Confederation and the Trades Union Congress, the government revoked the regulation in July 2022.

'Agency workers to plug gaps'

At the time, ministers said they would revoke “1970s-style restrictions” so that employers hit by industrial action “could plug staffing gaps with agency workers.”

In December 2022 however, the High Court granted permission to 11 unions to challenge the legislation that revokes regulation seven.

Dismayed by P&O Ferries sacking experienced workers with replacement agency staff -- reportedly brought in on just £1.81 an hour, the unions are yet to launch the challenge.

'Long process'

“We’re waiting to see what happens with the [unions]’ judicial review…against the repeal of regulation 7,” says the REC’s Kate Shoesmith. “But…[it] will be a long process, I’m sure.”

Chartergates would not say yesterday whether the legal challenge -- scheduled for March 2023 -- is deterring the currently permissible supply of agency staff to replace workers on strike.

Mussa, the firm’s consultant, would only say: “This is an area of law that was updated recently -- albeit currently under challenge.

“The [July 2022] update repealed a restriction in the regulations that prior to the repeal prevented agencies from introducing or supplying agency workers to replace workers on strike.

“[Right now, though,] we could not say for certain whether employers…are making use of agency workers… to cover striking workers. But what we can say, is that the option is there.”

'Prolongs the conflict'

To supply agency staff as replacements, the replacements would currently need sought-after, niche skills, as the strikers include nurses, ambulance drivers, teachers, and driving examiners.

Even if all the skills temporarily absent due to industrial action were plentiful, the REC believes using agency workers to cover strikes ‘prolongs the conflict between employers and their staff.’

The confederation said as much in July last year, but its stance still seems applicable today:

“Government needs to step up and do the work around resolving industrial disputes rather than inserting a third party in the form of agency workers into a dispute,” the REC said.

“That does nothing to solve the underlying issues between the company and their staff. This will only prolong the dispute and inflame tensions.”

'Whether agencies have a sufficient, qualified, talent pool'

Nonetheless, for now, agencies can lawfully supply labour to striking sectors, states Chartergates’ subscriber update, which the firm says it issued so that its clients could make “important commercial judgement calls.”

“With such arrangements [of agencies supplying labour to striking sectors], engagers and hirers will undoubtedly need to negotiate with agencies and agree relevant and suitable terms,” the firm advises. “This negotiation will likely consider the economic cost of engaging an agency as well as all other commercial considerations.”

In a statement to ContractorUK, Mussa continued: “These include whether employers/ hirers consider that it would hamper their prospects for achieving a resolution with the unions and whether agencies have a sufficient qualified talent pool to fill the shortage. Unfortunately, the considerations are endless and will no doubt affect each sector differently.”