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Employers could use agency staff during strikes following new consultation

The news comes after a previous attempt to repeal the law was quashed by the High Court in July 2023

Government has opened a consultation on repealing the ban on agencies supplying temporary staff during periods of industrial action.

Using agency staff to replace the work of striking staff is currently illegal under regulation seven of the Conduct of Employment Agencies and Employment Businesses Regulations.

Read more: Ruling against using agency workers in strikes will not be appealed 

Yet the Conservative party has historically advocated for repealing the regulation.

In 2015, it was part of a manifesto promise, but was dropped following a consultation.

In June 2022, former business secretary Kwasi Kwarteng repealed the regulation without public consultation, arguing that the government had consulted in 2015.

However, this was ruled unlawful by the High Court in July 2023, with judge Thomas Linden calling it “unfair and irrational”.

Matt Jenkins, employment partner at Moorcrofts, said if the regulation is successfully repealed, it will give employers more flexibility.

“If – and that is a big if, based on the negative reaction from employer and employee groups alike – the restriction is removed, it will give employers additional flexibility as to how it can cope with strike action.  

“In the impact assessment that accompanied the consultation, examples are provided as to how some employers were able to benefit from the removal of restriction for the period in which regulation seven was repealed.”

One example was a report from Unite the Union that Harrods used agency workers to cover for striking security guards and CCTV operators during strikes in November and December 2022.

Read more: A year of strikes: what has changed?

However, using agency workers during strikes could worsen employee relations, according to Trades Union Congress general secretary Paul Nowak.

He said: “The Conservatives’ humiliating High Court defeat should have spelled the end of this cynical law. But now they are resurrecting the same irrational plans.

“Allowing unscrupulous employers to bring in agency staff to deliver important services risks endangering public safety and escalating disputes.

“Agency recruitment bodies have repeatedly made clear they don’t want their staff to be put in the position where they have to cover strikes. But ministers are not listening.

“The government’s own impact assessment is clear: this change will poison industrial relations and drag out disputes.”