With more industrial action looming – ban on supply of temps to replace striking workers repealed

With industrial action hitting the headlines once more, whether it be rail workers, postal workers, or, potentially nurses, the repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses regulations 2003 (‘Conduct Regs’), means that agencies can now supply agency workers to replace workers involved in industrial action. Does this now mean a free for all for employment businesses, or are there other factors which need consideration?

Despite the objections of many trade bodies and recruitment businesses, Regulation 7 has been repealed, and employment businesses now have greater flexibility than ever to supply staff to cover industrial action. Whether there will be agency staff available, willing, or able to replace workers involved in industrial action remains to be seen. However, if recruiters are considering taking advantage of the change, it is important to remember that there are other provisions in the Conduct Regs that need to be considered.

The Conduct Regs were introduced largely with the intention of protecting work seekers and oblige employment businesses to obtain certain information from hirers. This includes information in respect of health and safety risks, and to take reasonably practicable steps to ensure that it would not be detrimental for the work seeker to take the position. There may be specific risks associated with supplying workers to sites where there is ongoing industrial action, for example, where workers may be expected to cross a picket line, this could require additional health and safety checks and could potentially be to their detriment.

An employment business is also required to establish that the work seeker has the relevant training, qualification, experience, and any required authorisations for the role; something which may make the process of replacing striking workers difficult. These aspects of the Conduct Regs are, in our experience, commonly overlooked, with many in recruitment either not being familiar with the requirements due to lack of exposure or experience, or simply never having faced a complaint or EAS inspection.

Agency worker supply – a seminar on the rules and risks on 24th January 2023 will be delving into the key regulations relevant to an employment business, including the Conduct Regulations.

Theresa Mimnagh, Director at the recruitment and employment law specialist Lawspeed.

Lawspeed group corporate clients benefit from immediate up to date advice on staff engagement and related regulation; employment law, settlement terms and tribunal representation; employment status; client, IR35, PAYE, and umbrella contract templates; contract review/negotiation; self-employment and CIS contract templates; trade membership and government representation; audit and accreditation services and a state-of-the-art digital contract management platform.

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