As the UK government faces the prospect of a summer of strikes, it has reintroduced plans to change the law so agency workers can be hired to replace striking workers. While this will not happen in time to prevent the impact of current transport worker strikes, the BBC has reported it could be achieved by mid-July via a reform to secondary legislation. No official statement has been made, but the business secretary, Kwasi Kwarteng, has said this change “is on its way”.
This legislation is not a new idea, however. The government has tried – and failed – to introduce it before and it remains unlikely to work or to comply with international law.
While the policy was most recently announced by the transport secretary, Grant Shapps, it echoes proposals made by David Cameron’s Conservative government in 2015. That year’s Conservative manifesto pledged to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”.
This was swiftly translated into a proposal for legislative reform. Draft regulations to allow employers to hire agency workers to replace striking workers were set out in a consultation paper that July, alongside the controversial 2015 Trade Union Bill.
So why was the idea dropped in 2015? Unsurprisingly, the proposal was rejected by the Trades Union Congress (TUC) as an attempt to threaten the right to strike. It was also viewed by leading NGOs, including Amnesty International and Liberty, as “a major attack on civil liberties”.
Perhaps as importantly, the proposal also failed to pass standard parliamentary scrutiny. The Regulatory Policy Committee (RPC) - the UK’s regulation watchdog - criticised several major elements of the government’s impact assessment of this regulatory change. For a start, the government claimed that 22% of working days lost to strikes could be covered by agency workers, but the RPC found a lack of sufficient evidence for this figure.
The RPC also highlighted the need to factor in the costs of helping employers familiarise themselves with the new law and the impact on productivity. It observed that the impact assessment itself acknowledged that “agency workers may lower the usual productivity of the workplace”, but it discounted this in its calculations without explanation.
Linked to this concern is the need to assess the suitability of agency workers’ skill sets and location, which was also acknowledged in the impact assessment. Given these factors, the RPC asked why it would not be “more beneficial to the employer” to absorb the short-term costs of a strike instead of using temporary workers.
Impact assessments related to other elements of the 2015 Trade Union Bill were changed and resubmitted to address RPC concerns, but this measure was not. Instead, it was abandoned – presumably because the then government had to concede the proposal was not workable.
Revisiting the 2015 plans
These points all remain valid today as the Conservative government revisits the same agency worker proposal. In particular, while the physical location of agency workers may not matter for some types of work – especially in the digital era – specific skills remain crucial.
For example, recent moves by UK universities to replace striking exam markers with those from an external consultancy in Australia drew criticism from students and alumni. While marking can be performed by less skilled workers, students took to Twitter to voice concerns about a potential lack of expertise in the specific subjects being marked, as well as the lack of detailed feedback given to students.
Imagine the implications in a different line of work. The shadow chancellor, Rachel Reeves, recently remarked that she would not feel safe travelling on a train if a short-term agency worker replaced a trained signaller. Similar health and safety concerns could arise if strike action is called by other unions – the British Medical Association, for example, has already warned it may prepare for a strike ballot.
Another reason for discarding the government’s proposal in 2015 was its breach of standards set by United Nations agency, the International Labour Organization (ILO). This could have repercussions for the UK in relation to its international trade commitments and exposure to sanctions such as the EU-UK Trade and Cooperation Agreement, which sets out UK obligations in this area.
As the Employment Lawyers Association (ELA) observed back in 2015, ILO standards say “private employment agencies” should not make workers available to replace strikers. That same year, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) recommended “that the use of striker replacements should be limited to industrial action in essential services”.
Services deemed by ILO supervisory bodies as essential are those “whose interruption would endanger the life, personal safety or health of the whole or part of the population”, for example hospitals, electricity or water supply services. In 2018, the Ognevenko judgment of the European Court of Human Rights referenced the ILO standards when it said that essential services would not include railways without further evidence of an acute emergency that would endanger life, personal safety or health.
If the current UK government is to abide by international commitments as an ILO member and party to the European Convention on Human Rights, agency workers can only replace strikers in essential services. In practice, however, employers are likely to be further restricted by public expectations that agency workers have the right skills to address health and safety concerns.
A more sensible approach, which does not repeat past mistakes, would be for the government and employers to listen to and negotiate with workers and their unions.
Tonia Novitz is affiliated with the Institute of Employment Rights (as a vice-president) and is on the advisory board of International Lawyers Assisting Workers (ILAW).
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