In a recent case, the High Court essentially found that it continues to be unlawful to use agency staff to cover striking workers.
R (on the application of ASLEF and ors) v. Secretary of State for Business and Trade emerged from an amendment to the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the 2003 Regulations) which came into force in July 2022. The amendment revoked the restriction on allowing employment businesses to supply temporary workers to replace individuals taking part in strike action. Thirteen trade unions (the Claimants) brought a judicial review to challenge the amendment which had been introduced by the government (the Respondent). The High Court allowed the application and quashed the amendment with effect from 10 August 2023.
Background
Under the Employment Agencies Act 1973 (the 1973 Act), and Regulation 7 of the 2003 Regulations, it is unlawful for employment businesses to supply temporary workers to replace employees taking part in official industrial action. There had been a previous public consultation in 2015 on revoking these provisions but, at the time, there was no real appetite for revocation and it did not proceed. However, in the face of significant industrial action in various sectors in the UK, the government sought to take action to reduce the disruptive effect of strike action by introducing new regulations (the 2022 Regulations) in order to allow employment businesses to supply temporary workers to cover striking workers. The 2022 Regulations took effect in July 2022 without further consultation being undertaken.
The Claimants challenged the 2022 Regulations, saying the Respondent had failed to comply with its statutory duty to consult, and that lifting the ban on the supply of agency workers amounted to an unlawful interference with the rights of trade unions and their members. The Respondent resisted the application, arguing that it was “highly likely” that the outcome would not be substantially different if there had been consultation, and that there was no unlawful interference with the rights of trade unions and their members or, in the alternative, that such interference was proportionate.
The judgment
The High Court upheld the Claimants’ challenge. The judge said the Respondent had not complied with its statutory consultation duty under the 1973 Act. That duty was designed to improve decision-making, test the case for legal reform, and require the views and evidence of the public and stakeholders to be taken into consideration. The duty could not be said to have been met by the earlier 2015 consultation and, further, it was very difficult for the Respondent to “recreate the world that never was” to show that a consultation would not have impacted its decision to implement the 2022 Regulations. In fact, it was notable that the 2015 consultation had led to the government abandoning plans for reform due to the lack of support for the proposals in the consultation responses.
The judge was also convinced by the Claimants’ arguments regarding the interference with their rights and that the balance of law should not be further tilted against them.
The judge concluded that the Respondent’s approach was “so unfair as to be unlawful and, indeed, irrational”, and quashed the 2022 Regulations, meaning that, as of 10 August 2023, employment businesses are again unable to supply temporary workers to employers to cover those involved in industrial action.
