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Published 28 July 2022
On 15 July we reported that the Government had laid legislation before parliament to enable employment businesses to supply temporary workers to plug staffing gaps during industrial action. As of 21 July this measure is now in force.
The new regulations revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. Regulation 7 prevented an employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker. As a result of this revocation employers are now no longer restricted from engaging temporary workers when industrial action is taking place. However, the Business Secretary, Kwasi Kwarteng, has stated that companies will still be required to abide by broader health and safety rules that keep employees and the public safe. It will be the responsibility of individual businesses to hire temporary workers with the correct and suitable skillset and/or qualifications to meet the obligations of the role.
Several trade unions have written to the Business Secretary indicating their intention to seek a judicial review of the new regulations, which they believe are unlawful. The Secretary of State now has 14 days to respond, otherwise the unions say they will take the Government to the High Court in an attempt to get the new regulations overturned. Essentially the unions’ position is that the new regulations are a violation of the European Convention of Human Rights. They also argue that the Government has failed to discharge its obligation to consult on this matter.
WHAT DOES THIS MEAN FOR EMPLOYERS?
The changes in the law are in place now and apply across all sectors. Against the backdrop of the current upsurge in workers taking industrial action, allowing the use of agency workers will provide greater flexibility to businesses but it will not be unfettered. Employers will have to ensure that temporary workers have the necessary skills and qualifications to meet health and safety requirements.
We will keep you updated about the judicial review action.
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