Since 1976, it has been illegal for an employment agency to deliberately introduce or provide workers to an employer to perform the duties of employees who were participating in official industrial action. Regulations established under Section 5 of the Employment Agencies Act 1973 and, more recently, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“the 2003 Regulations”) made this act a criminal offense.
However, in July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (“the 2022 Regulations”) came into effect. It overturned Regulation 7 of the 2003 Regulations and permitting agency workers to be supplied to fill in for striking workers.
The 2022 Regulations faced heavy criticism and were judicially reviewed by numerous trade unions, based on the following grounds:
- The unions argued that the Secretary of State had failed to fulfill their statutory obligation to consult before enacting the 2022 Regulations.
- It was asserted that by implementing the 2022 Regulations, the Secretary of State had violated their duty under Article 11 of the European Convention on Human Rights (“ECHR”), which aims to prevent unwarranted interference with the rights of trade unions and their members.
In July 2023, the High Court upheld the grounds in the first challenge and quashed the 2022 Regulations. The Court explained that the purpose of the consultation duty includes obligating the Secretary of State to consider the perspectives and evidence of informed parties. This ensures that Parliament can make decisions based on well-tested measures, with input from relevant parties in the sector. In the case of Regulation 7, the decision to revoke it had not taken into account the views and evidence of representative bodies with vested interests. The Court did not comment on Article 11 of the ECHR.
Subject to any appeal, the 2022 Regulations have be quashed with effect from 10 August 2023. It is once again unlawful to hire agency workers to cover striking workers. The government may choose to pursue this proposal again but would need to go through the proper consultation.
Importantly, there is no prohibition on employing agency workers to cover the work of striking employees or casual workers filling in for their colleagues during a strike. Consequently, employers may want to revisit this approach or explore alternative options, such as temporarily outsourcing service provision in affected areas to third parties.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page at https://www.linkedin.com/company/audley-chaucer-solicitors/.
Kieran Pezzack
This information was correct as of September 2023
