Firms are entitled to use workers supplied by an external agency to cover for striking employees, as long as they are employed directly by the firm and not by the agency supplying the workers, legal experts have said.
The clarification comes as the postal union CWU has repeated its threat to take Royal Mail to court over its decision to hire agency workers to help cope with recent industrial action. Last week Royal Mail announced it would hire 30,000 temporary workers to clear the backlog in post created by earlier local action.
The Communication Workers Union (CWU) is still seeking legal advice as to whether this could be in breach of the Conduct of Employment Agencies and Employment Businesses regulations, which make it illegal for temporary workers to be used to undertake the work of striking employees. A decision is expected later today.
But law firm Pinsent Masons today said it was possible for an employer to use an employment agency to supply workers to cover for striking employees, so long as the firm employed them directly.
An agency workers guide, issued today, said: “Employers can use an employment agency to supply workers and employ them directly. An employment agency can lawfully supply workers for the employer to employ directly at any time. The agency could even do the pre-recruitment screening. It follows that the employer can make use of the services of such an agency without aiding and abetting any criminal offence by the agency, since none would exist.”
It added: “An employer can move existing employees from other parts of the business (or group) to cover for striking employees: this might be inflammatory but is not unlawful. These employees might be workers recruited via an employment agency but employed directly by the business, but they must not be ‘agency workers’.”
A CWU spokesman previously told Personnel Today: “Court action is something we are very serious about. If Royal Mail goes ahead with the hiring of the 30,000 agency workers then we will be looking at legal action.”
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Royal Mail insisted it was acting fully in line with employment law. The temps were being hired to clear a backlog of letters, not to do the work of the postal workers while they were on strike, it said.
Talks between Royal Mail and the CWU were also set to continue today in a last-ditch attempt to avert further strikes.
