Industrial Action: Employment Agencies and Trade Union Liability

Government will shortly lay before Parliament two statutory instruments: the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, and the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022.

The recruitment sector is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“the Conduct Regulations”). Regulation 7 of the Conduct Regulations makes it a criminal offence for an employment business to knowingly—or having reasonably grounds for knowing—provide temporary workers to an employer to perform the duties of workers taking part in an official strike or other industrial action.

Repealing these burdensome legal restrictions, will give businesses impacted by strike action the freedom to tap into the services of employment businesses who can provide skilled, temporary agency staff at short notice to temporarily cover essential roles for the duration of the strikes.

We believe the changes we are making will help mitigate the impact of future strikes, such as those seen on our railways last week, by allowing trained, temporary workers to carry out crucial roles to keep trains moving. The change in law, which will apply across all sectors, is designed to minimise the negative and unfair impact of strikes on the British public by ensuring that businesses and services can continue operating. For example, strikes in public services such as education can often mean parents have to stay at home with their children rather than go to work, or rail sector strikes stopping commuters getting to work or to other businesses.

It should be noted that removing this regulation does not put in place any new barriers on an individual’s right to take part in lawful industrial action. Employment Businesses will not be required to supply agency workers to businesses, rather the change that we are making simply provides the freedom to do so should they wish to. Similarly, a key part of our protections for agency workers is that they cannot be compelled to take on assignments and removing this regulation does not alter existing health and safety requirements.

When they are considering legal claims against unions which organise or authorise unlawful strikes, employers may decide to bring a claim for damages against the union. The Trade Union and Labour Relations (Consolidation) Act 1992 sets the upper limits to the damages that can be awarded based on the size of the union that organised the unlawful strike action. The levels of damages have not been reviewed since 1982 and are significantly out of date.