The High Court has ruled that the government’s decision to repeal laws that banned employers from using agency workers to cover for staff who are on strike was unlawful.
In 2022, against the backdrop of industrial action in the rail sector and with other industrial action expected, the government decided to revoke regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 which prohibited agencies from providing temporary workers to replace individuals taking part in an official strike or official industrial action. Without any consultation, on 21 July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force which meant that agencies could then provide temporary workers to cover striking workers.
Thirteen trade unions applied for judicial review of the government’s decision as they argued that consultation should have taken place and that there had been a breach of the government’s duty to prevent unlawful interference with the rights of trade unions and their members.
The High Court found that the government had acted unlawfully, and they therefore quashed the Amendment Regulations. From the 10 August 2023 onwards, the law reverts to the position pre-July 2022, so agencies will again not be able to supply businesses with temporary workers to cover those employees who are on strike.
If the government remains determined to revoke regulation 7 of the Conduct Regulations, it can either consult as required and place new regulations before parliament, or appeal against the court’s judgment.
The Government indicated it was disappointed at the result and was considering its next move.
The impact of the return to the long-standing position could be minimal given that the right to supply temporary workers to replace striking workers was only in force for a year. Furthermore, employers would have had to consider whether using temporary workers in such circumstances was even right for their business given the training that would need to have been provided and the impact on employer relations.
Given this U-turn is a return to the previous position that was the law for many years, it will be familiar to businesses. Close attention however will need to be paid to this area to see what the Government do next to ensure that businesses stay within the law.
