Can employers use agency workers during industrial action?

Industrial action has been across the news recently with refuse workers in Glasgow who were on strike last week during the COP 26 climate conference. 

As bins across the city began to fill residents asked what options were available to continue the services during the strike, one means by which an employer may seek to lessen the impact of industrial action is by hiring a temporary replacement to cover the duties of a striking worker. This issue has arisen in ongoing industrial action involving the retailer Clarks. 

Clarks is accused of breaking the law by using agency workers to cover for warehouse staff who are currently on strike. Under the current legislation, employment businesses are prohibited from supplying employers with temporary workers to perform the duties normally performed by a striking worker who is taking part in official industrial action, or the duties normally performed by any other worker who has been assigned to cover for such a worker.

Clarks admits that they do engage agency workers at their warehouse. However their position is that agency workers are engaged at the warehouse to perform other work, not that of the striking employees, which is permitted under the legislation. Additionally if an employer was to hire temporary workers directly this would be permitted.

The Conservative Manifesto at the 2015 general election proposed changing the law so that an employment business could supply temporary workers in the event of a strike, the rationale was to lessen the impact of strike action on the wider economy. A consultation on the matter was commenced in July 2015, soon after the Government came to power. However no response to the consultation has ever been issued. 

Given the number of high profile industrial disputes which have arisen recently and the current Government's intention to bring a new Employment Bill before Parliament this position could change in the future. Until then employers will need to find other methods of dealing with industrial action.