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Consultation on hiring agency staff to cover industrial action

Posted on 25 March 2024

Last summer, the High Court reversed the Government's July 2022 lifting of the ban on employment businesses supplying temporary workers to cover for striking workers: Supplying temporary workers for strike cover is once more a criminal offence. This ban was re-instated in August 2023. However, despite the Court ruling and the presiding judge's criticism of ministers for acting in a way that was “unfair, unlawful and irrational”, in November, the Department for Business & Trade launched a consultation seeking views on whether the Government should lift the ban again and allow employment businesses to supply temporary workers to fill the roles of workers taking official strike action.

The Government believes that, whilst it is correct to regulate and restrict business freedom to operate when doing so is necessary and proportionate, this ban significantly interferes with businesses' operations and prevents work-seekers from being offered assignments they might otherwise want to work on. The Government's provisional view is that lifting the ban would help redress the balance between the importance of an individual's ability to strike and trade unions' ability to advocate for their members' interests with the rights of third parties who are not involved in the dispute.

The recruitment industry, trade unions and employers raised strong opposition to the ban being lifted. Opposing opinions include the belief that engaging agency staff to cover for striking workers only prolongs and inflames the conflict and risks drawing employment businesses and the workers they supply into the centre of disputes that are nothing to do with them and over which they have no control. The focus should be on resolving the dispute. In addition, there may not be any workers with the required technical skills and training available to cover striking workers at short notice.

In its response to the consultation, the Equality and Human Rights Commission (EHRC) accused the Government of failing to provide "sufficient evidence" to justify restricting the rights given to trade unions and their members under Article 11 of the European Convention on Human Rights. The EHRC warned "In summary, while Article 11 rights are not absolute, any interference must be proportionate, justifiable and well-evidenced. Our assessment is that the Government has not provided sufficient evidence to justify further restrictions of Article 11 rights."

The consultation closed on 16 January 2024. Unfortunately, the Government has not given a date by which it will reach its decision, but it will be interesting to learn the outcome when it is published, particularly given the extent of opposition to the lifting of the ban.

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