Who should take responsibility?

How fair are the Conduct of Employment Business Regulations 2003? Some 47% of recruiters believe the legislation is unfair and 33% say it needs clarification.
The recent threat of industrial action at the distribution depots of supermarket giant Asda has raised concerns about the fairness of the Conduct of Employment Business Regulations 2003, which govern the supply of temporary workers during such circumstances.

The concern was reflected in the recent Recruiter news poll which revealed 47% of recruiters believe the current legislation is unfair, while 33% say it needs clarification.

Current law states agencies may not supply temporary staff to replace an individual taking part in an official strike. Those who do could be sued for damages. The Department of Trade and Industry can also initiate a criminal prosecution.

However, some agencies believe the hirer, the end-user of the labour, should bear more of the responsibility. They say the hirer is the one picking up the telephone and demanding staff to cover industrial action.

Recruitment and Employment Confederation (REC) deputy chief executive Marcia Roberts says: "The current penalties for breaching the legislation are one-sided. We believe that when the client, in this case Asda, puts pressure on the agency to supply staff in such circumstances the same penalties should apply. We will be raising the issue with the relevant government departments at our next scheduled meeting."

The union's behaviour towards the agencies involved is also a cause for concern. At the end of June, the dispute between Asda and the GMB looked set to lead to industrial action. The GMB had written to 72 agencies warning them of the penalties involved in breaking the Conduct of Employment Agencies and Employment Business Regulations 2003. The union listed the agencies on its website. However, Recruiter discovered many of the agencies listed no longer supplied to Asda.

At the time, the union's national secretary, Phil Davies, said: "GMB members know full well that Asda is collaborating with a range of employment agencies and transport firms to illegally break the strike.

"This is an illegal attempt to run a coach and horses through the Conduct of Employment Agencies and Employment Business Regulations. GMB intends to mount a vigorous campaign to expose these illegal plants."

As part of its campaign the union held a demonstration and photo call for the media, with a stagecoach drawn by four white horses, outside the office of Leeds-based Optimus Recruitment.

Gavin Phillips, a consultant at Optimus Recruitment, told Recruiter: "We are looking for an official apology from the GMB because it picketed our offices, which are on a main road in Leeds.

"This ultimately damaged our reputation when we didn't do anything wrong and the strike action did not take place."

Phillips says the legislation doesn't take into account recruiters' existing relationships with clients, "and that when we supply staff it is up to the customers how they use them". He says the law needs to be changed but doubts whether lobbying by the REC will have any effect.

However, Vince Riddell, area manager of Protem HGV, told Recruiter: "The union got hold of the wrong end of the stick, we weren't going to send any of our drivers across the picket line, and Asda wasn't asking us to do anything illegal."

Riddell's attitude is shared by Steve Wortley, business development director at Driver Hire Nationwide. He says: "On the basis that we had no intention of being involved in any illegal activities, we were disappointed Driver Hire, along with several other agencies, was deemed 'Guilty until proven innocent' by the GMB. However, once we'd written to the GMB confirming our position, the GMB withdrew its protest."

A DTI spokesperson said there is equal onus on both agencies and hirers, especially in cases where the agency can prove they were put under pressure from the client. Lawyers point to further complications, arguing it would be difficult to prove the case against an agency for supplying labour, especially to an existing client.

In the absence of clarity, it seems hirers, agencies, lawyers and unions may continue to chose to interpret the law in different ways.
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