Employment lawyers said that agencies which supply temporary staff to the Royal Mail who are then used to cover the work of striking postal staff could be acting unlawfully. Both parties could also face unlimited fines.
James Willis, senior associate at Thomson Snell & Passmore, said: “The Conduct of Employment Agencies and Employment Business Regulations 2003 make it unlawful for a temping agency to supply agency staff to the Royal Mail for the purposes of covering the jobs of striking workers.
“If Royal Mail were to recruit its temporary staff in this way, it is actually the temping agency that would be breaking the law. Upon receipt of a complaint from the Communications Workers’ Union, the Employment Agency Standards Inspectorate could take action against the temping agency in order to enforce the regulations.”
Rob McCreath, partner at Archon Solicitors, agreed and said that although there is a defence that agencies could turn to it’s unlikely to work: “There is a defence if the agency does not know or has no reasonable grounds for knowing that the work to be performed would normally have been carried out by striking workers. However given the publicity surrounding the postal strikes this will be of limited value.”
Willis said that if the Royal Mail recruited the temps itself and employed them directly it “would arguably be acting quite lawfully in using them to provide cover for striking workers”.
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But McCreath added that “abnormally large supplies of agency staff which appear to be replacing striking workers could result in potentially unlimited fines for agencies and Royal Mail”.
He explained that Royal Mail could be seen as an accessory to a breach of the regulations which may make it liable for a fine if agencies were found to have breached the regulations. The maximum fine that a magistrates court can impose is £5,000, but a Crown Court has the power to impose much higher fines.
