Can an employer use agency workers to cover work of striking workers?

Until last summer, provisions were in place that prevented an employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action.

In 2015 the Government had conducted a public consultation on a proposal to repealing those provisions. The majority of responses did not support a change in the law and the Government decided not to go ahead. In 2022, in the context of industrial action in the rail sector, the Government decided to revoke the provisions without further public consultation.

2022 Regulations – using agency workers to cover striking workers

In June 2022, the Government therefore introduced new Regulations, which came into effect on 21 July 2022 (the 2022 Regulations). The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy, Mr Kwasi Kwarteng. The 2022 Regulations enabled employment businesses to supply skilled agency workers to plug staffing gaps during strike action.

A number of Unions issued judicial review proceedings in response. Unions were concerned that the 2022 Regulations undermined the right to strike. Arguments included that the 2022 Regulations were unlawful because the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973 (the Act), and that the 2022 Regulations violated trade union rights that are protected by Article 11 of the European Convention on Human Rights.

Were the 2022 Regulations unlawful?

The High Court has upheld the judicial review challenge. It found that the Secretary of State failed to comply with his duty under the Act to undertake consultation before making the 2022 Regulations. It found that Mr Kwarteng did not conscientiously consider the responses to the 2015 consultation, and that his judgment ‘was not informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned, not even the views of such bodies which were expressed in 2015’.

The High Court concluded that the Secretary of State’s approach was ‘so unfair as to be unlawful and, indeed, irrational’. It went on to consider that even if the Secretary of State had conscientiously considered the 2015 responses, it would still have been unfair to fail at least to seek updated views and evidence given the lase of time, the developments in the intervening period and the professed reasons for wishing to implement the new regulations in 2022.

The High Court accordingly quashed the 2022 Regulations. The High Court did not express any view on the argument that the 2022 Regulations interfered with the rights of trade unions and their members under Article 11 of the ECHR.

Comment

As a result of this successful challenge, employment businesses can no longer supply workers to cover the work of striking workers.

R (on the application of ASLEF and ors) v Secretary of State for Business and Trade

21 July 2023

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