Ban on supplying agency workers during strikes to be reinstated

The High Court has held that regulations allowing employment businesses to supply temporary staff to fill in for workers taking part in industrial action are unlawful and should be quashed.

The quashing order will come into effect from 10 August 2023. From that date onwards, employers should not use agency staff to fill in for striking workers (or for those covering them) and should instead make alternative plans.

Background

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the “2003 Regulations”) made it a criminal offence for an employment business knowingly to introduce or supply temporary workers to perform the duties normally performed by a striking worker, or the duties normally performed by any other worker who has been assigned to cover the striking worker.

In 2015, the Government conducted a public consultation on a proposal to revoke Regulation 7 of the 2003 Regulations. The majority of responses did not favour this change in the law and so it did not go ahead.

In June 2022, in the face of possible strike action from several sectors, the Government decided to revoke Regulation 7 of the 2003 Regulations without further public consultation so that agency staff could be used to fill in for workers taking part in industrial action. This was implemented by the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the “2022 Regulations”) which came into force on 21 July 2022.  

Challenge by trade unions

The lawfulness of the 2022 Regulations was challenged in the High Court by thirteen trade unions on two key grounds:

(1) the Secretary of State at the time, Kwasi Kwarteng, failed to comply with his statutory duty to consult before he made the 2022 Regulations; and

(2) that by making the 2022 Regulations, the Secretary of State had breached his duty under Article 11 of the European Convention on Human Rights (“ECHR”) to prevent unlawful interference with the rights of trade unions and their members.

In relation to ground (1), the Secretary of State sought to rely on the previous consultation that had taken place in 2015. He argued that it was “highly likely” that the outcome would not have been substantially different had there been any further public consultation.

In relation to ground (2), the Secretary of State denied any such interference but claimed that, even if there had been, such interference was proportionate.  

Decision

The High Court agreed that the Secretary of State failed to comply with his statutory duty to consult before making the 2022 Regulations.

It found that the Secretary of State had not conscientiously considered the responses to the 2015 consultation. Even if he had, the decision not to consult further in 2022 was so unfair as to be “unlawful and, indeed, irrational.”

Additionally, the High Court was not persuaded that a rational, open-minded Secretary of State, conscientiously considering responses to a consultation held in 2022, would have come to substantially the same decision.

The High Court did not express a view on the second ground of challenge above.  

As a result, the High Court ruled that the 2022 Regulations will be ‘quashed’ with effect from 10 August 2023. This means that from 10 August (but not before) the prohibition in Regulation 7 of the 2003 Regulations will apply and employment business will be prohibited from supplying an employer with temporary workers to perform the duties normally performed by a striking worker, or the duties of those covering for striking workers.

Comment

Whilst the prohibition in Regulation 7 is imposed only on the employment business, not the employer, an employer may potentially be liable for aiding and abetting the offence. As such, employers who are considering the use of agency workers to cover the absence of striking workers from 10 August 2023 should observe the change in the law and make alternative plans.

Alternatives could include:

• using existing employees from other parts of the business or existing casual workers.
• engaging temporary workers directly without using an agency or employment business.
• temporarily outsourcing affected business functions to a third-party contractor.

It is also possible for employers to use any workers (whether or not they are agency workers) to replace workers who:

• are taking part in unofficial strike or other unofficial industrial action (as Regulation 7 doesn’t apply during unofficial action).
• leave or are absent during a strike but who are not participating in the industrial action.

It is of course possible that the Government may appeal the decision, or that it might consider reintroducing the 2022 Regulations after carrying out a compliant consultation process. However, unless and until we have an outcome of an appeal overturning the High Court decision, or the government reintroduced the 2022 Regulations, the bottom line for employers is that they should not use agency workers to fill in for striking workers.

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

Contributors: Victoria Wenn and Catherine Roylance

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