High Court Rules That Regulations Permitting Agency Workers to Cover Striking Employees Is Unlawful
Friday 11th August 2023
On 13 July 2023, the High Court handed down its judgement and determined that legislation enabling employers to take on temporary staff to cover for workers on strike is unlawful.
Background
Since 1976, it had been illegal for employment businesses to intentionally introduce or supply workers for the purpose of doing the work of people engaged in official industrial action. However in 2022, the government introduced the Employment Agencies and Employment Businesses (Amendment) Regulations 2022 allowing agency workers to cover work during a strike.
This new law was brought into effect around the same time the UK saw a huge uptake in strike action across various industries and sectors, including railway networks and the postal system. The government’s announcement was met with considerable outrage from various unions who were concerned that this new legislation could significantly undermine their ongoing strikes.
The High Court challenge
A group of 13 unions challenged the lawfulness of the Amendment Regulations on the basis that:
- The government failed to comply with its statutory duty to consult before making the regulations;
- The government acted in breach of Article 11 of the European Convention on Human Rights (ECHR) to prevent unlawful interference with the rights of trade unions and their members.
The government’s position was that a 2015 consultation had already taken place and additional consultation was unlikely to have affected the decision. The High Court judgment found that the majority of responses to the 2015 consultation disagreed with the proposals to amend the law in this way. In response to the second argument, the government submitted that if it was found to have interfered, this would be proportionate and not in breach of Article 11 of the ECHR.
The High Court ruled in favour of the unions. The court found that legally, the government could only make regulations to amend this particular law following public consultation, and reliance on the 2015 consultation was insufficient. The court did not agree with the government’s position that it was highly likely the same outcome would have been reached following another consultation in 2022 on the basis that it would be impossible to predict with any accuracy what all the responses to a further consultation would have said. Furthermore, no evidence that the government considered the responses to the 2015 consultation when making the Amendment Regulations was provided.
The court made an order quashing the Amendment Regulations taking effect from 10 August 2023. As the decision could be made on the basis of the first argument alone, the court did not have to consider whether the government was in breach of Article 11 of the ECHR.
It is not yet clear whether the government will seek to appeal the High Court’s decision or attempt to reintroduce the regulations following a new consultation process.
The impact on employers
Following this judgment, employers will no longer be able to use agency workers to cover strike action. Employers facing upcoming strike action will need to consider how to manage the business during that time with the available staff. Employers could look to reassign managers and workers from other parts of their business to handle crucial tasks during any periods of industrial action.
For advice on how to deal with strike action, trade unions or how to reassign workers please speak to a member of the employment team who will be happy to advise.
