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The National Union Of Rail, Maritime and Transport Workers (RMT) announced earlier this month that around 40,000 railway workers are set to strike tomorrow (27th July) following ongoing disputes around working conditions, job security and pay.

Unions representing thousands of workers including nurses, teachers and postal workers are set to follow suit.

In response, the Government is proposing to lift a historic restriction on the use of agency workers to provide temporary cover for striking workers, which has long stood to restrict this option.

Interestingly, this was previously considered by the Government in 2015 although at that time the Government decided not to go ahead with the move. Subject to parliamentary approval this change is expected to take effect this month.

The Government has also announced an increase in the maximum damages that can be awarded against unions in respect of unlawful strike action.

Will the changes make a difference?

The Government’s press release dated 23rd June states the purpose of the change is to enable businesses to supply skilled agency workers to plug staffing gaps during industrial action. 

Although removing this barrier will widen the recruitment pool, employers will need to ensure that any agency worker has the required skills to cover the job and also who is prepared to cross the picket line.

While this may not be an issue for certain sectors these changes appear unlikely to have a significant impact in those sectors such as transport, that require specialist skills and training. The Government acknowledged within its announcement that “businesses will still need to comply with broader health and safety rules that keep both employees and the public safe’ so it is unlikely that safety critical roles like train drivers and conductors will be easily covered.

Given that job vacancies are at a record high it appears unlikely that this plan will provide the solution the Government is hoping for.

Employment businesses are understandably wary of providing workers in strike situations, given the backlash at agency workers caught up in the recent P&O dispute.

What the legislation will do is allow already trained and skilled employees from other sectors of a business to be redeployed to cover these skilled roles, while allowing agency workers to cover their jobs.

To ensure this happens employers should ensure that their current contractual terms provide an express right to temporarily change their employee’s place of work. Employers in sectors prone to strikes may wish to consider training employees to cover critical roles to ensure the minimum impact from a strike.

This move appears to be a gateway to the further erosion of trades union powers and to limit the impact of strikes generally. In addition, post pandemic the economy needs workers back at work and not on strike.

Furthermore, rail strikes often affect lower paid workers who, if they cannot work from home, could be stopped pay for travel disruption.

What can employers do now?

Employers have a number of existing options to keep their business operating during a strike. As well as redeploying existing staff, options include:

  • Using an employment business to find employees to employ direct on a short-term basis – the employment business may undertake pre-employment checks and interviews
  • Engaging temporary workers directly without using an employment business
  • Using existing agency workers to do the work they were originally supplied to do
  • Outsourcing business temporarily to a third-party contractor

Clarke Willmott is a national law firm with offices in Cardiff, Southampton, Manchester, Birmingham, Bristol, London and Taunton.

For help and advice on this and other employment matters please contact Paula Squire at paula.squire@clarkewillmott.com

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