It may now be legal to cover striking workers with temporary staff, but an increasing number of recruitment agencies are refusing to supply staff. What are the ethical and legal considerations for HR?
When the government announced in July that it would overturn legislation that bans the use of agency workers to replace striking staff, it caused outrage from unions.
In September, 11 trade unions and the TUC launched a judicial review of the changes to the regulations, arguing this is unlawful because the government failed to consult unions as required.
Both the TUC and agency body the Recruitment Employment Confederation slammed the decision, saying the move would be “counter-productive, impractical and puts workers at risk”.
“Using agency staff to cover strikes will only prolong the conflict between employers and their staff. Strikes are industrial disputes within a single industry or firm,” they said.
Agency workers & strikes
Harrods threatens to use agency staff if strike goes ahead
But as more sectors vote to hold industrial action or are balloting members, HR teams are often facing the difficult decision whether to bring in temporary staff from agencies to cover striking employees – given this is now technically legal – or manage workloads with fewer staff.
School dilemma
This dilemma was highlighted in the recent case of a London-based primary school, Drapers’ Pyrgo in Romford, which brought in a number of workers to cover 10 support staff who were striking over cuts to wages and working hours.
It contacted recruitment agency Pertemps Education Network asking for three teaching assistants over two days, telling Pertemps this was for sickness cover. But when the agency discovered the temps would be covering striking staff, it took the decision to no longer supply staff to the school.
Managing director Andrew Anastasiou wrote a letter to the National Education Union stating the company was “completely unaware of the strike action”.
“Now we fully understand the situation, we will refrain from supplying any staff until the dispute has been resolved. We have no intention of involving ourselves or undermining any parties and fully appreciate the ethical responsibility,” he added.
A second agency, Simply Education is also reported to have agreed to supply staff, but when it was approached by The Guardian newspaper about the situation, it apologised and said it would no longer do so.
A spokesperson told the paper: “We have reviewed our company policy and as a result will no longer be supplying teaching or support staff to cover strike action.
“Rest assured, our focus is always on providing the best support we can to our teaching staff, the education sector and to the schools we work with. We understand what a difficult and emotional subject this is and offer our sincere apologies for any upset caused.”
The chief executive of the multi-academy trust that runs the school, meanwhile, explained the difficulty of the situation.
Bushra Nasir, said the trust “reluctantly took the decision to hire some agency staff to cover some roles during the strike, in line with government legislation.
“This was to ensure that all pupils could attend school during any further disruption. It was not politically motivated or done to undermine the strike but purely in the best interest of our children and their families.”
Issues remain
The school is by no means the first organisation to allow agency workers to break strikes. Luxury department store Harrods sent a letter to staff in August explaining that it was prepared to use agency staff if a strike over pay went ahead, stating it was “no longer restricted from engaging temporary workers should any industrial action take place now or in the future.”
Richard Arthur, head of trade union law at Thompsons Solicitors, suggested that employers may even be breaching human rights obligations by breaking strikes in this way. He said: “Employers shouldn’t be using agency workers to cover during industrial action.
“There may be new regulations for now, but the UK’s international obligations, including under the European Convention on Human Rights, prohibit such use. If agencies do supply work-seekers to cover during industrial action, they are acting in disregard of recognised international standards.”
REC campaign director Shazia Ejaz said that while sourcing agency staff for cover is technically legal, employers should be mindful of the reasons workers are striking in the first place, and how breaking the strike could impact operations.
“Although the law was recently changed to allow agencies to supply staff to cover striking workers, the issues identified by the REC and our members prior to this change have not been addressed,” she said.
“So it is not surprising that when asked, many REC members tell us that they and their clients will not be seeking to change practice. Issues of concern include the health and safety of agency workers, and there would also be a large proportion of agency staff that wouldn’t want to cross a picket line.
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“REC members would no doubt make assessments on client needs and look at things on a case-by-case basis but employers should be prepared for the fact that for a number of reasons, not least ongoing labour shortages, using agency staff in strike situations might not be an option for them.”
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