'TIS THE SEASON TO BE STRIKE-BUSTING
The Government has this month taken two significant steps in its continuing campaign to reduce the effectiveness of industrial action.
Firstly, the Government has issued guidance on what employers need to consider before and after they receive strike notices from unions, and what should be included in work notices that employers need to issue to unions in relation to what they consider constitutes the minimum service level to be maintained during strikes. The guidance is lengthy and cannot easily be summarised in a newsletter but it sets out clearly what “must” by law be done and what it’s recommended “should” be done, and it contains helpful flowcharts and timelines.
You can access it here:
https://www.gov.uk/government/publications/minimum-service-levels-msl-issuing-work-notices/minimum-service-levels-issuing-work-notices-a-guide-for-employers-trade-unions-and-workers
The second measure is the opening of a consultation on abolishing the current prohibition on Employment Businesses supplying temporary cover for those on strike or those who have been shifted from their usual role to cover striking colleagues.
This ban on the supply of temporary workers to cover strikes was originally introduced in 1976 and it can be found in Regulation 7 of the Conduct of Employment Businesses and Employment Agencies Regulations 2003 (the “Conduct Regulations”).
"...this proposal may be just what they have been waiting for. If strike action becomes less effective due to a new-found ability to replace striking workers with temps, it may be that some workforces become disillusioned with striking as a means to improve conditions."
The Conservative Party included the abolition of the ban in its manifesto for the 2015 General Election and the Government duly consulted on such a proposal in 2015 as required by section 12 of the Agencies Act 1973. On that occasion the Government decided not to proceed.
However, last year the then Secretary of State reconsidered the situation and, in light of significant industrial action within the Railways, concluded that Regulation 7 should be repealed. Relying on the 2015 consultation, the Government unilaterally repealed Regulation 7 with effect from 21 July 2022.
This decision was subject to Judicial Review (R (ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin)) and found to be unlawful, so the ban was reinstated with effect from 10 August 2023.
Undeterred, rather than appealing the decision, the Government has now opened a consultation on its proposal to overturn the ban. The consultation paper acknowledges that allowing Employment Businesses to supply workers to Hirers whose employees are striking will reduce the effectiveness of such industrial action (I know – surely that’s the whole point?!) but asserts that this would not in any way limit an individual’s right to strike…
The Government points to the fact that strikes continued to be called and observed during the period from 21 July 2022 to 10 August 2023 when the ban was no longer in place (in fact strike action increased) and asserts that Regulation 7 interferes significantly with the way employers can run their operations and is disproportionate and unnecessary. Cover can already be brought in by employers if they hire replacements directly, or if they outsource the function in question, so the likely impact of overturning the ban is exaggerated, according to the Government.
It will be interesting to see the outcome of the consultation this time. Many businesses in the recruitment sector do not wish to see their reputations tarnished by supplying strike-busting temps. It is true that they will not be obliged to do so if they don’t want to, but they are concerned they’d be giving away contracts to competitors who have no problem providing their temps.
Similarly, at present temps need not worry about turning down strike-busting assignments and the possible adverse impact of turning down work, because they can’t currently be offered such assignments. If the ban is overturned then temps may have difficult decisions to make. They can’t be forced to accept such work, but regular rejection of work offers can lead to fewer offers being made.
For some employers, however, this proposal may be just what they have been waiting for. If strike action becomes less effective due to a new-found ability to replace striking workers with temps, it may be that some workforces become disillusioned with striking as a means to improve conditions. Could closer cooperation and dialogue between employers and employees be a possible outcome? And what would it mean for the unions if one of their main tools to effect change is blunted in this way?
If you wish to provide your views to the consultation, you should do so by 13 January 2024. It can be found here: https://www.gov.uk/government/consultations/hiring-agency-staff-to-cover-industrial-action/hiring-agency-staff-to-cover-industrial-action