Trade Unions Declawed? Law Change 2022

Caragh Bailey
4 min read
Trade Union Law Change 2022. Employment Law Friend discusses how strike action could be affected by the amendment, revoking Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003

What is the impact of strikes and stay aways on businesses?

Strike action is designed to impact a business where it hurts - right in the profit. Where a workforce can grind production or services to a halt for a day, or several - the business loses money; not just in the losses of sales during the strike action itself, but customers and service users may go to a competitor on the day and then continue to use them instead.

There is further ongoing impact of strikes on business' profit, with growing ethical consumerism. The public are becoming more ethically conscious with their buying power. If strike action creates bad press for a business, their brand can be affected. If they are perceived to be denying their workforce reasonable rights & pay, this can be detrimental to their PR (public relations) and damage their profit.

These impacts give Trade Unions bargaining power when negotiating for better working conditions for their members.

There are some negative impacts though. Where a company's losses are too great they can take years to recover, which may result in smaller pay-rises, a harder line on future negotiations, and even the dissolution of the company. For this reason, both sides are motivated to reach a mutual resolution to strike action.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022

A new law came into force on the 21st of July 2022. Previously, existing regulations prohibited employment agencies from providing temporary workers to cover:
  • the duties normally performed by an employee who is taking part in a strike or other industrial action; or
  • the work of an employee who is covering the duties of an employee taking part in a strike or other industrial action.

The new regulations revoke the pre-existing regulation, this law change allows organisations to employ agency workers during strikes to 'plug' labour shortages.

How do the changes to the law effect strike action?

The government say that the new law is necessary to allow businesses to fill essential roles, particularly concerning disruptions to healthcare, national travel and education as caused by doctors & nurses', rail workers' and teachers' strikes.

Trade Unions are concerned that this will damage the potency of strike action as a bargaining tool in negotiations for worker's rights as well as pose a serious threat to public safety.

It is believed that there are not sufficient numbers of adequately trained agency workers to 'fill the boots' of striking members. A major concern is that inexperienced agency workers will become - although temporarily - responsible for rail safety, healthcare provision or education.

Further concerns include:
  • The new law may breach the international right to freedom of association
  • Negotiations may become even harder due to pressure on hirers to break strikes
  • Agency workers may be exposed to violence and intimidation from strikers as 'scabs'
  • This may not resolve the issue at all as there aren't enough skilled temporary workers readily available to prevent closure or disruption to service

Are the Trade Union law changes even lawful?

Unison announced it's intentions to challenge the new law. The union wrote to business secretary, Kwasi Kwarteng, giving him 14 days to respond to their allegations that the new amendments are unlawful. Unison's arguments are:

'The government’s reliance on a seven-year-old consultation and flawed evidence to justify changing the law is unlawful' and;

'the government is in breach of Article 11 of the European Convention on Human Rights​, which protects the right to strike, and international labour standards.'

Unison have requested a Judicial Review and are threatening High Court action.

Have Trade Unions lost their power?

It remains to be seen whether the Trade Union law change will be overturned by the imminent legal action. In the time being, it is possible that strike action may lose some of its power. Some big ifs to consider:

  • If the new law is upheld, will businesses be able to source the required labour to cover the strike action?
  • If they are able to, will the loss of their workforce and reliance on temporary staff still motivate them to work toward a mutual resolution with the unions?
  • If their work is being covered by agency staff whilst they are out of pocket, will this demoralise workers enough to prevent them from striking in the first place?
  • If strike action does lose its efficacy as a result of the law change, will other forms of industrial action be sufficient to influence employers in trade union negotiations?

This article will be updated as events unfold. Bookmark me to keep up to speed with developments.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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