As the CWU seeks legal advice on whether it can take Royal Mail to court over its use of agency workers during the postal strike, employers may be concerned about what contingency plans they can use if industrial action goes ahead.
Law firm Pinsent Masons has said that it is possible for employers to use an employment agency to supply workers and employ them directly to cover for striking employees, as long as they are employed directly by the firm and not by the agency supplying the workers.
Here is a brief guide from Pinsent Masons, outlining how far employers can go to ensure minimum disruption to business during strikes.
What an employer can do
Use an employment agency (a firm that does not itself employ the workers whose services it supplies to the end user) 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.
- 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'.
- Employers can continue to use any agency workers already supplied on a 'business as usual basis' for the original purposes for which they were engaged. They should not, however, be specifically re-allocated to the duties normally performed by colleagues taking part in industrial action.
- Any agency worker already supplied who leaves can be replaced by another agency worker who should only perform the work for which their predecessor was engaged.
- Agency workers can be used for duties relating to the business, even if indirectly relating to the industrial action, as long as they are not actually covering for employees who are taking part in the industrial action.
What an employer cannot do
- Use an employment business (a firm that employs the workers whose ser