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On 23 June 2022, the Government announced its plans for legal changes to allow agencies to supply temporary workers to cover workers taking industrial action. This Insight explains the context of these plans and the law the Government wants to repeal.
Current restrictions on employment agencies during strikes
Current restrictions on employment agencies during strikes are found in regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (the Conduct Regulations). These prohibit employment businesses from supplying temporary workers to cover for workers “taking part in a strike or other industrial action”.
This restriction does not apply if the agency “does not know, and has no reasonable grounds for knowing” that the workers they are supplying will be replacing those on industrial action. The Conduct Regulations create a criminal offence, punishable by a fine for agencies that break this rule.
These restrictions only apply to the employment agency supplying workers, not to the employer whose workers are on strike. There have never been restrictions on employers moving staff internally or hiring new staff directly (either temporary or permanent) to cover for striking workers.
How and when do the changes take effect?
The Statutory Instrument (SI) to repeal regulation 7 of the Conduct Regulations was laid before Parliament on 27 June 2022, in the form of the Draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.
The SI is subject to the affirmative procedure, meaning it will require approval from both Houses of Parliament before it is made. Following this and subsequent signature by a Minister, it will take effect the following day.
Where did these rules come from?
The prohibition to apply agency staff during a strike was first introduced in 1976 under the then Labour Government. It did so in the Conduct of Employment Agencies and Employment Businesses Regulations 1976, under powers granted by section 5(1) of the Employment Agencies Act 1973, which were in turn replaced by the Conduct of Employment Agencies and Employment Business Regulations 2003.
These rules are separately enacted in Wales under the Trade Union Wales Act 2017 which the UK Government also intends to repeal, against the wishes of the Welsh Labour Government. See Mark Drakeford to resist UK plans to repeal Welsh trade union law (BBC News, 28 June 2022).
Has this been tried before?
In 2015, the Conservative Government made attempts to remove the legal ban on agency workers being used to cover for industrial action.
The 2015 Conservative manifesto (PDF) pledged to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”.
The Government ran a consultation on hiring agency staff during strike action: reforming regulation from 15 July to 9 September 2015 on a proposal to repeal regulation 7 of the Conduct Regulations, alongside the passage of the Trade Union Act 2016. See the Library briefing on the Trade Union Bill (September 2015) for more details.
The 2015 proposals for repeal were ultimately dropped following criticism from the Regulatory Policy Committee (RPC) over the Government’s impact assessment for the proposal. The RPC rated the assessment “not fit for purpose.”
What has the Government said about the plans?
The Government’s press release announcing the plans (23 June 2022) explained the benefits of removing what they describe as “burdensome legal restrictions”, while noting that health and safety rules may still limit how agency workers can be used to cover striking workers. It said the changes:
will give businesses impacted by strike action the freedom to tap into the services of employment businesses who can provide skilled, temporary agency staff at short notice to temporarily cover essential roles for the duration of the strike.
The Explanatory Memorandum to the Draft 2022 Regulations states the aim of the change is “limiting the impact to society and the wider economy of strike action” and that an impact assessment will be published “in good time” before any parliamentary debates.
The Memorandum draws on the 2015 consultation in which a majority of respondents “expressed an opinion that there would be a negative impact” from the changes but the Government thinks “removing regulation 7 is the right course of action.” In response to concerns raised, the Memorandum notes that “Removing this regulation does not prevent individuals from taking part in lawful industrial action.”
Reaction to the plans
TUC General Secretary Frances O’Grady issued a statement criticising the plans (23 June 2022), branding them as “unworkable”, saying:
These plans are a deliberate attempt to undermine the right to strike and to reduce workers’ bargaining power.
Bringing in less qualified agency staff to deliver important services will endanger public safety, worsen disputes and poison industrial relations.
The TUC and the Recruitment & Employment Confederation (REC) also issued a joint statement: REC and TUC urge government to abandon plan to allow agency staff to replace striking workers (20 June 2022). They called the plans “not practical” and drew attention to “how unfair these situations can be for agency workers, as well as the negative attention they and the agencies would receive.”
On 16 June the Institute of Employment Rights published an article by Professor Keith Ewing, Professor of Public Law at King’s College London, Agency Workers as Strike-Breakers: ILO Convention 87, and the EU-UK Trade and Cooperation Agreement. Professor Ewing claimed that repealing regulation 7 may breach UK obligations under the International Labour Organisation Convention 87. The ILO Committee of Experts concluded in 2012 that “provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike.”
Professor Ewing argues that, as these ILO standards are incorporated into the EU-UK Trade and Cooperation Agreement (TCA – which is given effect in UK law via the European Union (Future Relationship) Act 2020), the SI to repeal regulation 7 may be unlawful. He said:
It is at least arguable that these pre-existing powers are constrained by the 2020 Act, s 29 so that they cannot be used in a way that will violate the TCA and the obligations thereunder. If this argument is correct, the government is constrained by its own hand from legislating to revoke regulation 7 by secondary legislation.
About the author: Patrick Briône is a researcher at the House of Commons Library, specialising in employment law and policy.