UK government launches consultation on use of agency workers during strikes

Last week, the Department for Business and Trade published a consultation on the removal of regulations preventing employment businesses from supplying agency workers to cover strikes. The proposed changes would allow agency workers to provide temporary cover in all sectors – as long as they are suitably qualified to uphold service standards.

But Diane Nicol, industrial relations expert at Pinsent Masons, said any new legislation that followed the latest consultation would be challenged by the unions and repealed by any change of government. “The unions have already made their position on the proposals very clear. Not only that, the Labour Party – which polling suggests will likely form the next UK government – would quickly repeal any laws that removed the ban on the use of agency workers during strike action and make other planned reforms to the law relating to industrial action,” she added.

Regulation 7 of the ‘Conduct Regulations’ currently restricts employment businesses from supplying agency workers during official strikes. The government has said repealing Regulation 7 would grant businesses the option to bring in agency staff during a strike if they choose to do so, providing more flexibility in handling strike action while maintaining workers’ ability to strike.

“Last year, the government rushed through legislation to overturn this ban, only to be defeated in a legal challenge by 13 unions. The court ruled that the 2015 consultation, which ministers had relied on to make the changes, had gone ‘stale’ and concluded that proper consultation had not been carried out. The unions also claimed that this was a breach of Article 11 of the ECHR – the right to freedom of assembly and association – but this was not tested because they won on the first argument,” Nicol said.

She added: “As a result, the government is now back on the consultation trail to re-introduce legislation to remove the agency worker ban and is seeking views from unions, employers, employment businesses, employees and workers alike by 16 January 2024.” 

The consultation launch comes after the government introduced more provisions earlier this month for minimum service levels in passenger rail, ambulance, and border security sectors which are due to come into force before the end of the year. Ministers have said that establishing minimum service levels, designed to balance workers’ ability to take strike action with security and emergency care considerations, would bring the UK in line with countries like France, Italy, Spain, and the US.

The government has also recently published non-statutory guidance to assist employers, trade unions, and workers in issuing work notices during strike action and minimum service level regulations are in effect. These work notices aim to identify individuals required to work to ensure that minimum service levels are maintained.

Last week, ministers published a new code of practice that outlines the reasonable steps that trade unions should take to ensure their members comply with work notices. The guidelines include clearly identifying members, contacting those named in work notices to advise against striking, and avoiding encouragement of members not to cross picket lines.

Nicol said: “The minimum service level legislation was watered down slightly following consultation with interested parties and the obligation on the unions to communicate with the wider membership was removed as was the duty to actively encourage those identified in the work notice to provide minimum services to do so.”

Failure to take reasonable steps could result in the loss of legal protection for unions against damages claims and possible injunctions. The maximum damages that courts can now award against a union for unlawful strike action have been raised from a maximum of £250,000 to £1 million for major unions.

Nicol added: “The rush by the government to introduce the minimum services regulations in the rail and border security sectors in particular before the end of the year may well be an attempt to avoid significant travel disruption over the festive period for the public. The government’s second attempt to remove the ban on using agency workers to cover strike action would be one way of potentially mitigating the effects of more strike action next year and before any general election. However, if there is a change of government and the unions make a further challenge, these measures could be short-lived.”