The government’s decision to repeal laws that banned employers from using agency workers to cover for staff who are on strike has been ruled unlawful by the High Court. From 10 August, employers will no longer be able to use agency workers to cover striking employees.
Unions including Aslef, GMB, Unite and Usdaw brought a claim against the business secretary, arguing the regulations were unlawful because the government failed to consult unions before introducing the changes.
The unions said the regulations present a risk to the rights of trade unions and their members, which are protected under article 11 of the European Convention on Human Rights.
A separate legal challenge was also brought by Unison and NASUWT.
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The government argued that it had consulted on the plans in 2015, claiming that it was “highly likely” that the outcome would not have been substantially different had there been further consultation. However, the High Court dismissed this.
The government’s legal team also denied that the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 breached the rights of trade unions and their members.
Under the Employment Agencies Act 1973, and more recently Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, it was unlawful for organisations to use or supply workers to carry out the work of employees taking part in official industrial action.
In 2015, the government conducted a public consultation on a proposal to revoke Regulation 7. The majority of the responses did not favour this change in law and in 2016 the government decided not to proceed.
In June 2022, amid industrial action in the rail sector and other anticipated strikes affecting public services, the government decided that Regulation 7 would be revoked without further public consultation. The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 were laid before parliament and took effect in July 2022.
The High Court’s decision in Aslef v Secretary of State for Business and Trade means that the 2022 regulations will now be quashed.
Public consultation required
Justice Linden’s judgment said: “Circumstances had changed since 2015 and the secretary of state cannot, therefore, have been sufficiently aware of the views which would have been expressed by the trade unions or the sector more generally had they been consulted in 2022.
“What would be required, if the government wished to pursue the proposal to revoke regulation 7, would be a public consultation and further consideration by the Secretary of State/Parliament of whether to implement it. There is no evidence before the court that this would cause widespread difficulties for employers affected by industrial action in the interim.
“Rather, the evidence thus far tends to suggest that employers would be unlikely to be able to make extensive use of the ability to source cover for industrial action from employment businesses, particularly in relation to important public services: hence the advice to the secretary of state in June 2022 that the revocation of regulation 7 would have a negligible beneficial impact in the short term.”
The government railroaded through this law change despite widespread opposition from agency employers and unions. The courts even found ministers ignored evidence that the measure would be counterproductive” – Paul Nowak, TUC
‘Badge of shame’ for government
The TUC said the ruling is a “major blow” to attempts to undermine the right to strike. General secretary Paul Nowak said: “This defeat is a badge of shame for the Conservatives, who have been found guilty of breaching the law.
“The government railroaded through this law change despite widespread opposition from agency employers and unions. The courts even found ministers ignored evidence that the measure would be counterproductive.
“This is the same reckless approach behind the anti-strike bill, which has faced a barrage of criticism from employers, rights groups and international bodies, and which has been amended by the House of Lords on three separate occasions during parliamentary ping-pong.”
The Strikes (Minimum Service Levels) Bill, referred to by unions as the “anti-strike bill”, would force trade unions to adhere to minimum service levels set by the government for various front-line public services.
Richard Arthur, head of trade union law at Thompsons Solicitors, said: “This is a significant victory for the entire trade union movement and preserves a vital safeguard in ensuring the right to participate in industrial action is effective.
Government must now act swiftly – while the process has been ruled unlawful the regulations remain on the statute book, putting agency workers, agencies and client businesses into a world of uncertainty about what the law now is.” – Neil Carberry, REC
“The judgment makes clear that the then secretary of state had a staggering disregard to his legal obligations when introducing legislation that enabled employers to engage agency workers to cover the duties of striking workers.
“He was driven solely by a political ideology to meet a self-imposed deadline to implement the regulations in the face of mounting industrial action across the country. He took this decision notwithstanding advice he received that it was likely to be counter-productive to the problem he wanted to address and was being rushed through without any regard being taken to the duty to consult which was a fundamental legal requirement.”
Recruitment and Employment Confederation chief executive Neil Carberry said: “This decision comes as no surprise. The law required a level of consideration and consultation that the rushed, politically-driven process of last year simply did not allow for.
“Government must now act swiftly – while the process has been ruled unlawful the regulations remain on the statute book, putting agency workers, agencies and client businesses into a world of uncertainty about what the law now is. We encourage the secretary of state to act swiftly to restore the situation that was in place before this ill-judged change was made.”
Aslef general secretary Mick Whelan said: “We are proud to have stood with the other trade unions and the TUC to challenge these changes legally, and we will continue to do so in all those other areas, including minimum service levels, to ensure a level playing field for workers here in the UK.”
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This story was originally published on 13 July and updated on 18 July with the date from which the agency worker ban is reinstated.
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