The government has announced legislation in response to the current strike action by rail workers and the threat of industrial action from other sectors. The legislation will allow the supply of agency workers to replace workers taking part in industrial action.
Is this something that should be welcomed by the industry? Or is it likely to cause more problems and are there more important areas surrounding compliance that should be addressed.
The ban on using agency workers to replace striking workers is a long standing one and is currently contained within R.7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Conduct Regulations) which restricts an employment business from supplying staff to replace those participating in official industrial action. The government’s announcement that this is to be repealed has received widespread criticism from both unions and trade bodies within the recruitment sector. Whilst some recruiters may see a commercial opportunity, others may see difficulties and potential for reputational damage to arise from placing agency workers in the centre of a trade dispute. Recruiters considering supplying workers to cover strike action should also be mindful of assuring compliance with other aspects of the Conduct Regulations, not least supply not being detrimental to a work seeker and ensuring that work seekers possess the training, qualification and experience required for the role. Given the controversial nature of this change, it seems surprising that the government has chosen to do this without first consulting with the sector.
Whilst this may be a headline grabbing announcement, for most agencies R. 7 is not a live issue, with industrial action remaining relatively rare in most sectors, the announcement does bring the Conduct Regulations and Employment Agency Standards (EAS), who are responsible for their enforcement, into the limelight. The EAS have recently reported a rise in complaints and inspections are on the increase, with failings relating to the issuing of Key Information Documents (KID) being widely reported. Perhaps now is the time to consult more widely on the application of the Conduct Regulations to ensure that they remain fit for purpose.
Looking at the wider picture recruiters have other more pressing concerns and priorities, not least addressing candidate shortages and protecting against unintended tax liability, whether under the Managed Service Company (MSC) rules or otherwise.
Tax compliance and protecting your business, including the role a KID has to play is something that will be discussed at our July seminar. Book your place to meet and discuss with representatives from HMRC as well as BEIS. Places are filling fast at what will be a very timely discussion you won’t want to miss.
Theresa Mimnagh, Associate 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.