TUC and REC urge government to abandon rehashed plan to allow agency staff to replace strikers

Representatives of both agency sector and unions say this plan is counter-productive, impractical and could prolong and inflame disputes

26 Jan 2024| News

The Trades Union Congress (TUC) and the Recruitment & Employment Confederation (REC) have joined forces to urge the government to abandon plans to end a longstanding ban on agency workers filling in for employees who are on strike.

The union body and agency sector body call on ministers to reconsider the ”ill-judged proposal”.

In June the government was defeated in the High Court after it rushed through new laws that allowed agencies to supply employers with workers to fill in for those on strike.

The presiding judge criticised ministers for acting in a way that was “unfair, unlawful and irrational” and reinstated the ban on agency staff being used to break strikes.

But despite this rebuke – and strong opposition from employers and unions – ministers are resurrecting the plans.

The joint statement from REC and the TUC warns the change could prolong disputes:

“We both believe that using agency staff to cover strikes only prolongs and inflames the conflict between employers and their permanent staff. It also risks placing agency staff and recruitment businesses in the centre of often complicated and contentious disputes over which they have no control. Where a dispute occurs, the focus should instead be on negotiation and resolution to return to a normal service.”

It also says the proposal is “impractical”:

“The proposal is simply impractical. There are currently significant numbers of vacancies for temporary agency workers. This suggests that many can pick and choose the jobs they take and are unlikely to opt for roles that require them to undermine industrial action.

Meanwhile, many roles that may be on strike require technical skills or training and impractical to fill with agency workers at very short notice.”

And it highlights the failure of government to provide any robust evidence that the changes will benefit employers:

The previous repeal of this regulation was overturned by the High Court because of failings in consultation.

In his judgment, Mr Justice Linden concluded that “the case for the measure was on any view less than overwhelming”.

It is therefore notable that, even though regulation 7 was repealed from July 2022 to August 2023, the government has still not provided robust evidence that lifting the ban benefits employers.

The statement comes as the TUC is set to hold a march and rally on Saturday 27 January to commemorate the 40th anniversary of the GCHQ trade union ban and to stand up for the right to strike.

Neil Carberry, Chief Executive of the REC, said:

“Agencies across the country have been clear that they do not want the law changed again. The ban on direct replacement of striking workers reflects global good practice and protects temps and agencies from being drawn into disputes that are nothing to do with them.

Removal of the ban does nothing to resolve those disputes either. The REC was clear in 2022 that this is a step which only causes problems for businesses and workers in reality – however good politicians think it sounds.”

TUC General Secretary Paul Nowak said:

“The humiliating High Court defeat should have been the final nail in the coffin for these unworkable, shoddy plans to overturn the long-standing ban on agency workers filling in for striking workers.

Now they are trying to resurrect the proposal despite strong opposition from unions and employers.

It’s spiteful, cynical – and it won’t work.

Bringing in agency staff to deliver important services in place of strikers risks worsening disputes and poisoning industrial relations.

Agency recruitment bodies have repeatedly made clear they don’t want their staff to be put in the position where they have to cover strikes. It’s time for ministers to listen and drop these plans for good.”

EHRC criticism 

The human rights watchdog, the Equality and Human Rights Commission (EHRC) has also criticised the move.

In its consultation response, the EHRC accused the government of failing to provide “sufficient evidence” to justify the restricting people’s rights under Article 11 of the European Convention on Human Rights.

This governs freedom of assembly and association. The ECHR is incorporated into UK law through the Human Rights Act 1998,

In its response to the government consultation on the changes, the EHRC warns:

“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.”