Breaking news: employers can't engage agency staff to cover striking workers

Last year the government rushed through legislation which revoked the prohibition on employers using agency workers to cover the work of staff who were on strike. These rules had been in force since 1976 and many commentators saw the 2022 Regulations as a blatant attempt, by the government, to undermine the effectiveness of strike action at a time when the number and frequency of strikes was escalating. 

Following a legal challenge by thirteen trade unions, the High Court has today (13 July 2023) quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. This means that these Regulations have no legal effect and the law reverts back to its previous position. Employers can't now engage agency staff to cover striking workers and employment agencies will commit a criminal offence if they supply staff on that basis.

Why did the High Court revoke the Regulations? 

The unions argued that the Regulations were unlawful because: 

1. The government hadn't complied with its statutory duty to consult before making the Regulations (ground one), and
2. It had breached its duty, under Article 11 of the European Convention on Human Rights, to prevent unlawful interference with the rights of trade unions and their members (ground two) 

In respect of ground one, the government argued that it had previously consulted on making these changes in 2015 but had decided not to go ahead with them at that time. The High Court said that wasn't sufficient. It found that the government had decided to plough ahead at 'exceptional speed' and without considering the responses to that consultation. It had prepared an impact assessment in 2022 which concluded that the policy change would be 'net beneficial' but it didn't have any robust data to back up that claim, nor had it been tested through consultation. In addition, the government hadn't demonstrated that it had listened to the strong criticisms voiced by trade unions and employment agencies about the measures, or reflected on advice it had been given which said that changing the law would have negligible short term benefits and could be harmful.  

The High Court upheld ground one and decided not to express a view on the more contentious ground two. 

You can read the full judgment in ASLEF and others, UNISON and the NASUWT v The Secretary of State for Business and Trade here. It runs to 207 paragraphs and isn't a quick read!

Can the government appeal?

Yes, but it will have to persuade the Court of Appeal that it has reasonable grounds to do so. It can't just appeal because it doesn't like the decision. And, even if it does issue an appeal, it may take many months for the case to be heard.

It could also go through a proper consultation process and re-introduce the Regulations after that has concluded. But that won't be a quick process either.

Where does this leave employers?

In the same position as you were prior to the introduction of these Regulations. You won't be able to use agency staff to cover for striking workers, or to cover the work of an employee covering the duties of another employee taking part in a strike or other industrial action. 

However, you can:

• Continue to use pooled staff that you employ directly to cover for striking employees
• Move existing employees from other parts of the business (or group) to cover for striking employees: this might be inflammatory but is not unlawful.
• Continue to use any agency workers already working for you before strike action was announced for the original purposes they were engaged. But, they should not be re-allocated to the duties normally performed by colleagues taking part in industrial action.
• Replace any agency worker who leaves provided the replacement only does the same work of the departing worker.

Need help?

Please contact Jenny Arrowsmith or Elaine Huttley if you need help with your industrial relations strategy. 

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