Agency cover no longer lawful during industrial action

Yesterday the High Court quashed Regulations that permitted employers to hire agency workers to fill in for striking workers during industrial action.

The Law

Up until July 2022, Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 made it unlawful for employment agencies to supply agency workers to an employer to carry out work in place of employees taking industrial action.

Last year Parliament passed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 to revoke Regulation 7, to enable employers to use temporary workers to plug the gap during industrial action.

A collection of 13 trade unions challenged this via a judicial review application and have succeeded.

Why were the 2022 Regulations quashed?

The High Court upheld the first or two grounds of the judicial review application, finding that the Secretary of State “acted unfairly, unlawfully and irrationally” in introducing the strike-breaking legislation in summer 2022 without prior consultation and had not complied with his statutory duties in this regard.

An argument that consultation on the same point had been carried out in 2015 and had been relied upon years later in 2022 was rejected. More recent consultation was required and there was no evidence to suggest the responses from the earlier consultation had, in fact, factored into the Secretary of State’s decision to revoke Regulation 7.

As a result, the 2022 Regulations that facilitated the revocation, have been quashed.

What now?

This is an important change which employers, particularly those with unionised workforces, should be aware of as the decision means the “status quo” will resume and employers will no longer be able to hire agency workers to temporarily cover for employees participating in industrial action.

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