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HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Understand the Law on Using Agency Workers for Strike Cover Unions Win High Court Battle
Since 10 August, it has once again become illegal for employment agencies to supply temporary staff to cover the duties of workers taking part in industrial action. We look here at what the legal position is now and what this means for employers.
What’s been Happening?
Last summer, the Government introduced the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. These repealed the ban on staffing suppliers providing agency workers to fill in for striking workers. In late July, 13 trade unions challenged the legality of the 2022 regulations, arguing that:
- The government breached its duty to consult before introducing the regulations.
- The regulations breached trade union members’ right to freedom of association under Article 11 of the European Convention on Human Rights.
The High Court has now agreed with the unions. It rejected the Government’s argument that a previous consultation in 2015 on repealing the ban on agency workers meant it had fulfilled its duty to consult. There was no evidence that when making the 2022 regulations the Government had even considered the responses to the original consultation – the majority of consultees had said they didn’t believe repealing the ban would make much difference, which is presumably why the Government had originally shelved the idea.
The court quashed the 2022 regulations on this ground and therefore didn’t even need to consider the unions’ second argument.
What’s the Position Now?
The position is the same as it was before last summer. It’s a criminal offence for employment agencies to supply agency workers to carry out duties normally performed:
- By a worker taking part in a strike or other industrial action. Or
- By any other worker you assign to cover that worker’s duties.
The Government has decided not to appeal against the decision. However, it could choose to consult on lifting the agency worker ban once more and introduce new regulations. In this case, the unions might bring a new claim that this breaches Article 11.
What Does this Mean for Employers?
This could make industrial action in the rail and other sectors more disruptive – creating knock-on effects for other businesses – because those employers can’t use temporary staff to try and maintain service levels.
Having said that, it’s not clear there’s been a huge upsurge in agency workers suddenly stepping in during strikes over the past year. It’s not easy to find agency workers at short notice with the right training and experience. Also, some employment agencies refused to supply staff due to concerns about the safety of agency workers crossing picket lines and reputational damage. Employers affected by industrial action may also have been worried that using agency workers would inflame tensions with the unions, prolonging the dispute.
In practice, then, the reinstatement of the agency worker ban is likely to have little impact on employers facing industrial action or other businesses with employees struggling to get to work. If your own business is facing industrial action, you’ll have to look at other options for providing cover for striking workers, such as deploying managers to front-line roles, transferring employees from other parts of the business, or using internal bank staff.
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HEALTH & SAFETY Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Your 5-step Guide to Reducing the Risk of Falls from Height
Falls from height are still the main causes of fatal accident and injury within the workplace. With working at height, comes risk, illustrated by 2022/23 HSE statistics which shows that 40 fatalities occurred due to accidents involving working at height. If you do not ensure safe working at height within your business activities, it could lead to someone being hurt, or even prove fatal, as the recent case below shows.
What Happened in this Case
2 Counties Construction (Midlands) Ltd, Worcester, was fined £12,000 and ordered to pay £4,139 in costs at Cannock Magistrates’ Court on 21 July 2023. Mr Ife, who was 27 at the time, was working with another employee, laying the blocks to form the gable walls for a two-storey extension. The pair set up a working platform using Youngman boards on the first floor of the property. As there was an unprotected stairwell opening in the property, one end of the Youngman boards was unsupported.
While leaning over to point up the blocks in the gable walls, the worker lost his balance before falling onto the unsupported boards and through the stairwell opening. He fell 4.5 metres onto the concrete floor below, fracturing his skull and damaging his facial nerve. The man was hospitalised for 3 days following the incident.
Follow these Key Steps to Minimise Risk
The Working at Height Regulations 2005 require you to assess the risks, avoid working at height, prevent the fall and reduce the consequences should a fall occur.
1. Assess the Risks
First, assess the risks and ensure you take into account the:
- Height of the task.
- Duration and frequency of working at height.
- Conditions of the surfaces being worked on.
2. Avoid
Where reasonably practicable, avoid working at height. Can the job be done from the ground, for example, using long poles for window cleaning activities? Or can you use component parts such as roof joists that are designed as a single unit that can be lifted into place mechanically, rather than individual sections needing to be erected at height?
3. Prevent
Where working at height cannot be easily avoided, prevent falls using either an existing place of work that is already safe or by using the right type of equipment, such as working platforms with permanent or temporary guardrails such as tower scaffolding or mobile elevated work equipment (MEWP).
Measures that you put in place should protect everyone at risk (collective protection) before measures that only protect the individual (personal protection).
- Reduce
Where the risks cannot be eliminated, minimise the distance and consequences of a fall by using the right type of equipment such as bean bags, safety nets (for falling objects) and, finally, personal protection such as lanyards and harnesses; but do ensure that individuals using these know how to inspect them, wear them and how to connect them to a suitable anchor point.
- Other General Arrangements
- Ensure workers can get safely to and from where they work at height.
- Ensure equipment is suitable, stable and strong enough for the job, maintained and checked regularly.
- Take precautions when working on or near fragile surfaces, such as by using warning signage, crawling boards and guardrails around fragile surfaces such as skylights.
- When working from ladders, ensure they are not overloaded; take into consideration the equipment and materials the workers are carrying before working at height.
- Prevent overreaching when working on ladders or stepladders.
- Do not use ladders or stepladders for strenuous or heavy tasks; only use them for light work of short duration (a maximum of 30 minutes at a time).
- Ensure anyone working at height is competent to do so (i.e. they have the skills, knowledge and experience to do the job).
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PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Choosing the Right Payroll Software: Key Features and when to Upgrade for Smooth HMRC Reporting
Payroll software is fundamental to the payroll operation. Unless the payroll function is contracted out, it is imperative that a business uses payroll software that is right for their business and allows them to meet their reporting obligations to HMRC. We explain the key features you should look for in payroll software and when best to change your software package.
To assist employers in choosing payroll software, HMRC publish a list of payroll software that is recognised by them and which can be used to report pay and deductions information to them. The list, which has recently been updated, can be found on the Gov.uk website at tinyurl.com/tnp48ut8 It includes both free and paid-for software, although the free software is only suitable for use by employers with fewer than 10 employees.
It should be noted that HMRC do not recommend one product over another. They also make it clear that they are not responsible with any problems with the software – any issues should be taken up with the software supplier.
Choosing Payroll Software
The list is a good starting pointing when looking for a payroll software package. However, before purchasing a package, it’s vital to determine what features you need. Some packages provide only the basics, whereas others have additional features which may or may not be useful.
The need to report pay and deductions information to HMRC electronically necessitates the use of payroll software that can achieve this. The products on the HMRC list will allow employers to do this. All packages should:
- Record employees’ details.
- Work out employees’ pay and deductions.
- Report payroll information to HMRC.
- Work out what you need to pay over to HMRC.
- Calculate statutory payments, such as SSP or SMP.
You will also need to decide what additional features you need. This may include:
- The need to produce payslips.
- The need to calculate and record pension payments.
- The ability to pay pension payments over to a pension scheme.
- Have different pay periods for different employees, for example, weekly-paid and monthly-paid employees.
- Send an Employer Payment Summary (EPS) to HMRC.
Not all payroll software packages will do all of the above.
Having identified the features you need, you can look at different packages on the list to find those that will meet your requirements.
Changing Software Packages
It may be that you are looking for a new payroll software package as your existing package no longer meets your needs. Care should be taken when changing software packages, particularly where this is done during the tax year.
Some payroll software packages will not let you use a payroll ID for an employee if it has already been used in another software package. If this is the case, you will need to enter ‘yes’ in the ‘payroll ID changed’ indicator in the Full Payment Submission (FPS). This must be done for each employee. Failure to do so may mean result in your payroll records being duplicated and your PAYE bill being calculated incorrectly.
Where possible, a move to a different software package should be done at the start of the tax year.
Basic PAYE Tools
This is a free software package produced by HMRC which can be used by employers with fewer than 10 employees to fulfill their payroll needs. It can also be used alongside other payroll software packages to undertake certain tasks that they may not be able to perform, such as checking a new employee’s National Insurance number or sending an EPS to HMRC. Basic PAYE tools is available to download from the Gov.uk website at: www.gov.uk/basic-paye-tools