High Court quashes Regulations permitting cover by agency workers during strikes

In July 2022, the Government changed the law to allow businesses impacted by industrial action to fill the roles of striking staff with temporary workers.  

The High Court has now decided that the 2022 Regulations implementing this change were unlawful and, as result, will cease to have effect from 10 August 2023.   From that date, the law will revert to the previous position, with employment businesses prohibited from supplying individuals to perform duties normally carried out by a worker who is taking part in a strike or other industrial action. 

Employers who are considering the use of agency workers to cover the absence of striking workers from 10 August 2023 will need to make alternative plans.

Judicial review

The High Court judgment comes as a result of judicial review proceedings brought by several trade unions.     The unions claimed that the Government’s decision to make the 2022 Regulations was unlawful because the Secretary of State for Business and Trade: 

  1. failed to comply with the statutory duty to consult before making the Regulations; and  
  2. by making the Regulations breached the duty under Article 11 of the European Convention on Human Rights to prevent unlawful interference with the rights of trade unions and their members.

The Court did not consider it necessary to make a decision in relation to the alleged breach of the European Convention on Human Rights, having already found the Regulations unlawful because of a failure to comply with the statutory consultation duty.    

In relation to its consultation obligations, the Government claimed that the Secretary of State relied on a previous consultation exercise carried out in 2015.   However, the High Court decided that in fact his decision “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”. Also, that the consultation obligations were “not fulfilled because there was no consultation with such bodies by him or, indeed, any other Secretary of State before he made his decision”.     The High Court concluded that the Secretary of State’s approach was “so unfair as to be unlawful and, indeed, irrational” and that the appropriate outcome would be to quash the 2022 Regulations.

Next steps

The Government may appeal the decision of the High Court, but this will not prevent the Quashing Order coming into effect on 10 August 2023 and remaining in place until the outcome of an appeal.   Another option which the Government might consider is reintroducing the 2022 Regulations after carrying out a compliant consultation process.  

For now, however, employers are recommended to observe the prohibition on using agency staff to cover the duties of striking workers and to make alternative contingency plans in the event that they are faced with strike action.  

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