Consultation on hiring agency staff to cover industrial action
After it being reported that the UK Government were not appealing a High Court judgment that quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 ("the 2022 Regulations") a consultation on the use of agency workers to cover the roles of striking workers has been launched.
Until July 2022, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ("Regulation 7") prevented businesses from supplying temporary workers to cover striking workers. The 2022 Regulations changed that by revoking Regulation 7, however they were then the subject of a successful judicial review challenge (brought by a number of different trade unions) in the High Court and the restriction on the supply of temporary workers in these circumstances once again become unlawful. The reasoning of the High Court in upholding the challenge was that the UK Government had failed in its duty to consult on the 2022 Regulations.
This new consultation seeks to remedy that omission. The consultation is seeking views on whether the UK Government should once again repeal Regulation 7. Responses to the consultation can either be done online or by email to agencyworkersconsultation@businessandtrade.gov.uk. However, irrespective of the outcome of the consultation there remains a big question mark over whether the repeal of Regulation 7, if it happens, will be more than a temporary measure. Should the Labour party win the General Election that is expected next year, they have confirmed that they will reverse any repeal of Regulation 7.
UK Government publish response to consultation and updated "reasonable steps" Code of Practice
A consultation ran earlier this year on the content of a draft Code of Practice on the "reasonable steps" a trade union should take to comply with their obligations under the Strikes (Minimum Service Levels) Act 2023 ("the Act"). As a result of this, an updated Code of Practice ("the Updated Code") and the UK Government's response to the consultation have been published.
Where a trade union gives notice of a strike in a sector where minimum service levels apply, employers may, having taken reasonably practicable steps to consult with the union, issue a "work notice" to that union. Currently there are 3 sets of draft minimum service level regulations before Parliament relating to border security, passenger railway services and NHS ambulance services which are expected to come into force before the end of the year. The work notice identifies the people required to work and the work to be carried out during the strike to ensure minimum service levels.
The Updated Code addresses the reasonable steps trade unions have to take to ensure their members comply with a work notice. The UK Government response to the consultation confirms a number of "relatively minor and technical changes" to the requirements. These include (1) the removal of a requirement for unions to communicate with the wider union membership that a work notice had been issued and how it will affect the strike and (2) the removal of a requirement to actively encourage those identified in the work notice to provide the minimum services.
Subject to the Updated Code receiving approval from the Houses of Parliament, the UK Government expects it will come into force in mid-December before the 3 sets of draft minimum service level regulations. However, as the Labour party have said they will repeal the Act if they get into power this may be another short-lived initiative.
Guidance for employers, trade unions and workers on issuing work notices
The Department for Business and Trade has also issued lengthy non-statutory guidance on issuing work notices. In broad terms the guidance explains the purpose of a work notice, the duties for workers and trade unions, and what employers need to do to prepare a work notice. The guidance has not been welcomed by trade unions
