Striking Times: As You Were…

As reported in our previous Law-Now series: Striking Times ((1) Preparing for industrial action, (2) Managing industrial action, and (3) The current industrial relations landscape in the UK), in the midst of increasing industrial action across the country in the summer of 2022, the government introduced the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (“Regulations”), which revoked the long-standing prohibition on using temporary agency workers to fill in for striking workers.

The prohibition provided:

“…an employment business shall not introduce or supply a work-seeker to a hirer to perform –

(a) the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or

(b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker,

unless in either case the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action.”

In the latest development in the recent conflict between the government and the trade unions over public service pay, thirteen trade unions have successfully brought judicial review proceedings in the High Court to overturn the Regulations. This means that, with effect from 10 August 2023, once again it will be a criminal offence for an employment business to supply an employer with agency workers to cover either the work of: (i) striking workers; or (ii) workers who have been redeployed to cover the work of striking workers.

The trade unions challenged the Regulations on two grounds. They argued that:

1. the Secretary of State failed in his duty to consult before the Regulations were introduced contrary to s.12(2) of the Employment Agencies Act 1973; and
2. the Regulations violated trade union members’ right to strike under Article 11 of the European Convention on Human Rights.

The Secretary of State argued that, when deciding to implement the Regulations, the government had relied on consultation that had taken place with the trade unions on the same proposals in 2015. The unions contended that this did not satisfy the duty to consult given the lapse of time and significant developments since the previous consultation. The unions argued that up to date views and evidence needed to be taken into account, and that the information provided in the earlier consultation was not adequately considered.

In relation to the alleged breach of Article 11, the trade unions’ position was that the Regulations impeded their members’ right to strike if employers can mitigate the impact of such strike action by hiring agency workers to cover for striking workers. The government maintained that the Regulations did not affect the right to strike and that, in any event, any impact on that right was proportionate.

The High Court ruled in favour of the trade unions on the first ground – the lack of consultation. The Court agreed that the government could not adequately rely on its consultation in 2015 and further found that, in any event, “there was virtually nil consultation prior to the decision on 13 June 2022 because the Secretary of State did not even consider the information available as to the responses to the 2015 Consultation.”

Having found in favour of the trade unions on the issue of lack of consultation, the Court chose not to express a view on the second ground – an alleged breach of human rights.

The reintroduction of this prohibition has the potential to significantly increase the disruptive effect of industrial action, particularly in industries where agency workers are regularly utilised to cover work on a temporary basis. 

It remains to be seen what the government’s next move will be.  Will the government engage in consultation with the trade unions with the aim of re-introducing the Regulations or will it first appeal the outcome of the judicial review proceedings?

In the meantime, employers who are facing the threat of industrial action in the form of a strike will need to ensure that their mitigation plans do not include the use of agency workers and agencies will run the risk of criminal charges if they supply agency workers for the prohibited purposes.

The judgment comes in light of a broader effort by the government to mitigate the impact of increasing industrial action. The proposed Strikes (Minimum Service Levels) Bill has recently returned to the House of Commons as part of the ping pong process. This Bill seeks to guarantee a minimum level of service during periods of strike action across a number of sectors. The Bill has proved to be controversial, and it is anticipated that it will also be the subject of legal challenges from trade unions on the basis that it removes current protections in place for trade union members. For further information, see our Law-Now: Government proposes legislation to mandate minimum service levels during strike action. The Bill has attracted intervention from the International Labour Organization (ILO) which has urged the government to ensure that it conforms with the ILO Convention on freedom of association and protection of the right to organise.

Holly Whittaker, a trainee solicitor in the employment team, contributed to this article.