The government has laid legislation before parliament to enable employment businesses to supply temporary workers to plug staffing gaps during industrial action. It has also announced a significant increase in the maximum damages that can be awarded against unions in respect of unlawful strike action.
THE FACTS
Under current law, employment businesses cannot lawfully supply temporary workers to perform duties normally performed by striking workers who are taking part in industrial action or by other workers who are reassigned to cover the duties of striking workers.
On 24 and 27 June 2022 respectively, an Order and Regulations to make these changes were laid before Parliament. (These were the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699) (Order) and draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (Regulations)).
The Order amends section 22(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 by increasing the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. With effect from 21 July 2022, the limits are increased as follows:
- Less than 5,000 members: £40,000 (currently £10,000).
- 5,000 to 24,999 members: £200,000 (currently £50,000).
- 25,000 to 99,999 members: £500,000 (currently £125,000).
- 100,000 members or more: £1,000,000 (currently £250,000).
The new limits will not apply to any proceedings which relate to an act that began or occurred before 21 July 2022.
The Regulations, if approved, will revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. This prevents an employment business from supplying an employer with temporary workers to perform duties normally performed by a worker who is on strike or taking industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker. If the Regulations come into force, employers will no longer be restricted to engaging temporary workers directly or outsourcing activities to third parties when industrial action is taking place. The Regulations require the approval of both Houses of Parliament. They will come into force the day after they are made and apply in Great Britain.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Allowing the use of agency workers should make it easier for employers to mitigate the impact of industrial action but it won’t be a complete solution. Employers will have to ensure that temporary workers have the necessary skills and qualifications to meet health and safety requirements. This change is expected to come into force in the next few weeks.
