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In brief

The government has announced that it is proposing to make changes to trade union law that will remove the current prohibition on businesses using temporary workers to cover staff taking part in industrial action. It has also announced that it plans to quadruple the maximum amount of damages that a court can award against a trade union for unlawful strike action from GBP 250,000 to GBP 1 million. These changes will need to be approved by Parliament.

Key takeaways

  • If approved, these will be significant changes to trade union law.
  • The ability to use agency workers to cover striking workers, and the recent Court of Appeal decision which confirmed that striking workers are not protected from action short of dismissal under the Trade Union and Labour Relations (Consolidation) Act 1992, will give businesses who face the prospect of industrial action greater flexibility to respond.
  • However, while legal, it is worth thinking about the impact on industrial, employee and public relations that taking these steps might have. A number of employment businesses have publicly announced that their workers will not replace workers taking part in industrial action. While the additional flexibility is welcome, businesses should think carefully about how these changes will impact their contingency planning going forwards.
  • It will also be interesting to see whether, if implemented, the change to the statutory cap on compensation leads to more employers choosing to sue for damages rather than apply for injunctions to stop the strikes going ahead at all.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

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

Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022, SI 2022/699


Jonathan Tuck is a partner in the Baker McKenzie employment department. Jonathan joined the Firm in June 2012 and completed secondments at Google between March and July 2015 and British Airways between July 2015 and January 2016.


Richard Cook is a Senior Associate in Baker McKenzie London office.


Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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