Industrial Action and the Hiring of Agency Workers - Guest Article by Ian Holloway

Employers may well be interested in a case law development regarding the hiring of agency workers to replace staff who are taking industrial action.

In 2003, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations specifically prevented ‘an employment business’ e.g., a recruitment agency, from providing an employer with agency staff to cover the duties of a worker taking industrial action.

However, in the wake of planned industrial action by rail workers, on 21 July 2022, the then Secretary of State for Transport, Grant Shapps was part of a News Story that announced new legislation that would allow the hiring of agency staff.  He was referring to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which omitted Regulation 7, i.e., removed the prohibition altogether meaning agencies were not allowed to supply agency workers to cover industrial action.

The case of The King (on the application of various Trade Unions) v the Secretary of State for Business and Trade found that the-then Secretary of State (Kwasi Kwarteng) had failed to comply with their statutory obligation to consult before making legislation to remove Regulation 7.  The High Court of Justice ruled that the 2022 Regulations were ‘unfair as to be unlawful and, indeed, irrational’.

The Regulations were quashed.

The Implications

Just with regard to Regulation 7, it’s back to where we were, with employment businesses not being able to supply employers with agency workers when their own staff are taking industrial action.

The Trades Union Congress (TUC) immediately issued a press release hailing the ruling as a victory for unions and, without doubt, this is a humiliating defeat for the UK Government.  Perhaps, this is a lesson that legislation should always go through the necessary consultation stages and not be rushed through as a ‘knee-jerk’ reaction to a situation.

However, how realistic was the employment of agency workers ever in the employment market anyway?  Employers may be able to replace staff numbers, yet are they able to replace them with workers with the required set of knowledge, skills and behaviours to adequately cover the role?

I don’t believe we have heard the last of this story!  The 2022 legislation remains in place, regardless of whether case law has quashed it.  Agency workers, employers and recruitment agencies will be confused as to what is and what is not allowed, so the UK Government needs to provide some clarification on this.

 

Ian has been in the payroll profession for over 30 years, processing payrolls from all sectors, large and small. He moved from hands-on exposure in 2011 to becoming involved in educating the profession. His wide-ranging experience and up-to-date knowledge ensured he was able to impart this information to UK professionals through course material, social media, newsletters and face-to-face presentations.

Today Ian combines both these and is involved with a vital aspect of the payroll environment, that of working with the software that actually does a lot of the hard work for the profession.

Ian approaches education and communication very much from the perspective of how this will impact the software, the employer and the worker. So, whilst the legislation is vital, compliance and effective communication are paramount.

Connect with Ian on LinkedIn.