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Agency workers to replace striking workers? An insight into the debate so far...

View profile for Chris Piggott
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Both the Trades Union Congress (TUC) and the Recruitment & Employment Confederation (REC) have openly been critical of the government in its plan to revoke the ban on replacing striking workers with agency workers during industrial action.

This runs parallel to recent legislation that enables employers to issue a work notice of industrial action. That’s the theory at least.  The lack of implementation suggests this is not as straightforward as the government, and employers, may have hoped.  The rail industry’s current experiences are a case in point.

Following a legal challenge to address the series of strikes within the rail sector, July 2023 saw the High Court quash the government’s proposals to reintroduce agency workers.

It was recently labelled as ‘ill-judged’ by both the TUC and REC who argued it could prolong disputes. Alongside this, legislation in July (Minimum Services Levels Act) allows employers to issue a work notice, in effect requiring a minimum number of staff to attend work regardless of any industrial strike. The object being to maintain a minimum service level.

With fresh strikes in January and February, it is notable that the rail industry have chosen not to issue any work notices in line with the recent legislation- excluding London North Eastern Railway (LNER). Ultimately this proves the tight constraint between managing employees’ rights and their ability to exercise the same.

When LNER acted and announced the work notice the railway drivers’ union response was to by announce five further days of strike. This was later revoked when LNER rescinded the work notice.

What can we learn from this?

The above highlights the delicate balance between managing both employees’ employment rights and an employers’ wish to ensure consumer expectations are satisfactorily met under the new legislation. On first blush it appears legislation has yet to usurp negotiation, with meeting around the table and dialogue via Acas remaining the best policy to settle industrial relations differences.

We will be running practical workshops on key employment topics throughout 2024. Details can be obtained by contacting:

Alena Dudrah (Employment Paralegal)-

Chris Piggott (Employment Partner)-