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UK — Union threatens legal action against Royal Mail's hiring of temporary employees

19 October 2009

Royal Mail bosses have escalated their dispute with staff ahead of the planned national strike on Thursday and Friday this week by announcing that they will take on 30,000 temporary employees in order to clear backlogs between strikes as well as to help with the seasonal build up of mail in the run up to Christmas.

Officials of the Communication Workers Union (CWU) said they believed the move to hire temporary staff during an official strike is illegal. Paul Kenny, General Secretary of the GMB union said that "there are strict laws that forbid employers and employment agencies using agency staff to break a lawful dispute and it is the job of Lord Mandelson's department to enforce those laws."

Mr. Kenny suggested to the Times that agencies could face fines of 5,000 Pounds per worker for each day they supply staff to Royal Mail during an industrial dispute over pay, working conditions and reform.

It is not unusual for the Royal Mail to use temporary staff to meet the increased demand for postal services over the holiday period. Royal Mail said that they would usually hire 15,000 temporary Christmas staff anyway and that the extra staff would help to reduce the impact of unjustified and irresponsible industrial action.

Royal Mail Operations Director, Paul Tolhurst told GMTV that "the 30,000-strong recruitment blitz was not designed to 'break' a union as last-ditch talks aimed at preventing this week's crippling strikes went ahead."

The CWU General Secretary, Billy Hayes, hinted that there could be more stoppages to come, insisting that he was "not ruling anything out". He suggested that he was in a stronger position than the former miners' leader Arthur Scargill in the famous 1984 strike, because the service had a greater impact on the economy.

Meanwhile Nick Wells, chief executive of TNT Mail UK, revealed his company was prepared to take on the national job, but admitted it would be 'a massive challenge'. TNT relies on the Royal Mail for the final mile of its postal network but has completed several trial runs in Liverpool, Manchester and Glasgow which have seen postmen in orange uniforms make door-to-door deliveries.

Royal Mail bosses are to meet the CWU at an undisclosed location later today in a bid to break the deadlock.
Staffing companies should be aware of the Conduct of Employment Agencies and Employment Business Regulations 2003, Part ll General Obligations, regulation 7 (‘restriction on providing work-seekers in industrial disputes’) which states:

"An employment business may not supply a temporary worker to a hirer to replace an individual taking part in an official strike or any other official industrial dispute. In addition, an employment business must not introduce or supply a work-seeker to do the work of someone who has been transferred by the hirer to perform the duties of the person on strike or taking industrial action. An employment business will have a legal defense to having acted in breach of this regulation if it does not know, or has no reasonable grounds for knowing, that official strike action is in progress'.

Regulation 7(2) provides that this regulation applies to official strike action. If an agency or business has not complied with the regulations, it can be sued for damages by anyone who suffers loss or injury as a result of that failure and EAS can initiate a criminal prosecution against it (the maximum penalty is a fine of up to 5,000 Pound per offence and a 10 year ban). This is in addition to its power to apply to an employment tribunal to have someone declared unsuitable to carry on, or be concerned with, an employment agency or business.

However, Royal Mail will probably have some very highly-paid barristers advising them on why clearing the backlog is different and therefore does not contravene these regulations. Defining which temporaries are part of the Royal Mail’s normal Christmas hire and which are being used to deal with strike-related backlogs will not be straightforward and, in the absence of further legal clarification, staffing companies will need to exercise caution.



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