From 21^st July 2022 it is no longer illegal to use agency workers to backfill the roles of striking workers. What does this mean for employers? Here is an overview of what’s changed, and some of the practical implications of the new legislation.

What has changed?

Prior to 21^st July 2022 it was illegal for employment businesses to provide temporary agency workers to fill vacant positions caused by striking workers.

This meant that if a high number of workers or critical staff took strike action, it could cause major disruption. But news just in, the Government has now repealed this law, meaning that services can continue to run if agency workers are available to fill staffing gaps caused by the strike action.

The Government has also raised the maximum damages that courts can award against a Union, in cases where strike action has been found to be unlawful.  The amount varies dependent upon the number of members of the Union, but has increased from between £10k and £250k to between £40k and £1millon.

Are there any restrictions on using agency workers to backfill?

The new law applies across all sectors across England, Scotland and Wales and is aimed at providing greater flexibility to businesses who may be impacted by strike action.

Companies are still required to comply with their health and safety obligations, which are there to ensure the safety of both workers and the public.  Businesses must therefore ensure that any agency workers who are engaged to backfill for striking workers are suitably qualified to meet the obligations of the role they are undertaking.

So, the change in the law could have little impact unless there is a ready supply of agency workers who have the necessary skills and qualifications required. This could be challenging in sectors such as rail or education, where specialist skills/qualifications are required.

Are there any other considerations to be aware of?

Where the Union has called for strike action, it is usually as a last resort. The aim of the strike action is to cause disruption to the employer’s business as a means of increasing the Unions bargaining power. Therefore, the ability of a business to backfill for striking workers seriously undermines that position, and as such could escalate industrial relations even further.

For this reason, businesses may be reluctant to engage agency workers to replace striking workers, given the adverse impact it could have on ongoing negotiations.

Employers may also be reluctant to supply workers due to concerns they would undoubtedly be going into a hostile environment, and could be subject to bullying and harassment.

There may also be a concern that such workers may end up in roles that they don’t have the experience to undertake and therefore are ill-equipped to perform.

What other options are open to employers aside from using agency workers?

Prior to this change coming into force, many businesses have had to deal with the reality of strike action without the ability to engage agency workers. These more “traditional” options still remain open to businesses. So you may wish to consider:

• Using existing employees from other parts of the business or existing casual workers already engaged in the business.
• Engaging temporary workers directly (although this could still escalate industrial relations).
• Use any workers (whether agency or otherwise) to replace workers who leave or who are absent during a strike but who are not participating in the industrial action.
• Temporarily outsource affected business functions to a third-party contractor.
• Use agency workers after the strike is over to clear any backlog.

If you have potential strike action or industrial relations issues in your business and would like to discuss this further with a member of the Vista team, please do not hesitate to contact us.

For more industrial relations guidance in this time of employee relations unrest, take a look at the dedicated IR section on our resource hub here.