The Government has responded to the strike action taken by rail workers in the RMT union – and the threat of industrial action by workers in other sectors, including health and social care - with controversial proposals to amend and repeal some long standing legislation ‘to minimise the negative and unfair impact of strikes on the British public’. We summarise the changes and their potential impact on employers below.

The proposals for change

On 23 June 2022, the Government announced that it intends to

1. repeal the current ban on the use of agency staff during industrial action and
2. increase the maximum damages that courts can award against a union from £250,000to £1 million, when strike action has been found by the court to be unlawful.

The planned change to the agency staff rules is identical to the Government’s 2015 proposals and the concerns raised in 2015, such as being an attack on civil liberties, remain valid and unresolved.

What will the new regulations mean in detail?

The new regulations, if approved, will revoke regulation 7 of The Conduct of Employment Agencies and Employment Businesses Regulations 2003. Regulation 7 prevents an agency 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. The regulations require the approval of both Houses of Parliament.

Changes to the Trade Union and Labour Relations (Consolidation) Act 1992, if approved, will increase the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. The limits will be 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)

What to take away

The removal of the ban on the use of agency workers during strikes may be welcomed by employers. However, even if the change is approved, it remains to be seen how much of the disruption caused by strike action will be mitigated in practice. For example, agency workers might be reluctant to take on temporary ‘strike breaking’ assignments and, with staff shortage facing most sectors, there might not be enough agency workers available with the necessary skills and experience.

The increase in the maximum damages is unlikely to dissuade unions from taking industrial action as the penalties will only bite if the action is found to have been unlawful.

How Capsticks can help

Capsticks supports employers before, during and after a dispute by delivering training, helping to resolve disputes, advising on the management of staff and services and contingency planning, as well as defending any legal challenges / claims that may arise.

For further information on how we might assist your organisation, please contact Paul McFarlane, Alistair Kernohan and Chloe Edwards.