Call for agency staff to break strikes – will contractors and recruiters take the risk?

It is unclear how serious the government is in its proposals to change the law around strikes and agency workers – or how interested major staffing companies would be in getting involved in what would be highly controversial supplies. Osborne Clarke’s Workforce Solutions Team gives their initial take on the situation.

Reports in the press suggest the UK government is planning an urgent amendment of legislation which prevents companies from using agency workers to replace striking workers. This measure would operate alongside other actions the government appears to be considering relating to requiring a minimum number of rail staff to work during a strike.

Whether these measures are genuine legislative plans or merely political comment designed to put unions off the idea of striking is unclear. It is also unclear to what extent major staffing companies would get involved in any such supplies even if the law is changed to allow such supplies.

The current legal restrictions   

Assuming the reports reflect real legislative plans, the legal background is this: Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 makes it a criminal offence for a staffing company (known in the regulations as an “employment business”) to introduce or supply an agency worker to an employer organisation to cover for a striking worker, or for a worker who has been moved to cover for another striking worker. 

It is not a criminal offence for the employer organisation to use such staff – the offence lies with the staffing company, though obviously there may be legal implications for an employer organisation that knowingly uses a law-breaking supplier.

It does not prevent an “employment agency” from providing details of a work-seeker to be engaged directly by the employer, perhaps as a zero-hours worker, although other employment law issues may come into play in relation to that.

It does not prevent an outsourcing company from contracting with an employer organisation and agreeing to take over a service on a contracted-out basis. That will often be a complex negotiation with (temporary or permanent transfer of assets etc.) and involve TUPE and related employment law issues including consultation obligations.

Osborne Clarke’s take on the situation

What is not clear is whether major staffing companies (or for that matter outsourcing companies), being the companies with the practical ability to mobilise sufficient workers at short notice and check their qualifications and suitability, would be willing to get involved in this sort of activity.

There are skills shortages across the UK. Is there a sufficiently large group of suitable and qualified individuals ready and waiting to fill these roles? And would the staffing companies, many of whom are trading very successfully at the moment, be willing to risk their brand by association with a potentially controversial measure like this. 

We consider it likely that many major staffing companies may choose to avoid involvement in this dispute.

* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.