In R (ASLEF and others) v Secretary of State for Business and Trade  EWHC 1781 (Admin), the High Court quashed regulations (introduced in July 2022) which had permitted employment businesses to provide agency workers to replace striking employees. This means that, with effect from 10 August 2023, the law has returned to its pre-July 2022 position and employment businesses are banned from supplying temporary workers to employers to cover those involved in industrial action. Below, we examine this case further.
Prior to July 2022, regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319) (“Conduct Regulations”) prohibited agencies and employment businesses from supplying agency workers to cover for striking employees. The prohibition applied both to replacing individuals who were taking part in an official strike or official industrial action, and replacing individuals who had been transferred by the hirer to perform the duties of those on strike or taking industrial action.
In 2015, the Government launched a public consultation seeking views on whether to repeal regulation 7. As most of the consultation responses did not favour the proposed change, the Government dropped the proposal.
In July 2022, in the midst of rail strikes and with the prospect of other strikes across various industries ahead, the Government took the decision to revoke regulation 7 of the Conduct Regulations without further consultation. Accordingly, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) (“Amendment Regulations”) came into force on 21 July 2022 to implement this change.
Thirteen trade unions sought to challenge the lawfulness of the Amendment Regulations by making an application for judicial review in the High Court. The unions argued that the Secretary of State, Kwasi Kwarteng MP, had failed to comply with his statutory duty to consult before making the Amendment Regulations.
In his defence, the Secretary of State asserted (among other arguments) that his duty to consult had been complied with by the 2015 government consultation.
High Court decision
Allowing the judicial review application, the High Court concluded that the Amendment Regulations were unlawful, as the Secretary of State had not in fact complied with the necessary consultation requirements before making them. In particular, the Court found that the Secretary of State had not consulted with bodies which are representative of the relevant interests in the recruitment sector (i.e. the interests of employment agencies and businesses, employers/hirers and work-seekers).
The High Court noted that significant developments had impacted the labour market since the 2015 public consultation (including Brexit, the Covid-19 pandemic and the implementation of the Trade Union Act 2016). In addition, experts at the International Labour Organisation had raised concerns about the proposal.
The High Court therefore quashed the Amendment Regulations. This means that, with effect from 10 August 2023, regulation 7 of the Conduct Regulations is now back in force and employment businesses can no longer supply temporary workers to employers to cover those involved in industrial action.
To read the full High Court judgment, see here.
Implications of the decision
When regulation 7 was removed by the Amendment Regulations, there was some doubt as to the impact that allowing the use of agency workers to cover striking employees would have in practice, and in particular the extent to which it would assist in resolving industrial disputes. In addition, in industry sectors such as manufacturing where workers are highly skilled, or where there are already labour supply issues, there was concern that employers could struggle to find enough qualified agency workers to provide the cover required to mitigate the impact of industrial action to any meaningful extent.
Now that regulation 7 is back in force, those issues have fallen away. Employers who need to cover the duties of striking staff are once again unable to use agency workers for this. Instead, they will need to revert to the options they relied on before the Amendment Regulations were introduced, such as using volunteers from amongst their existing workforce and/or bank staff.
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