High Court rules legislation allowing agency staff to be used to cover strikes unlawful

The High Court has ruled that Government legislation introduced last year which said employers can use agency staff to fill in for striking workers during industrial action is unlawful.

The judgment, handed down yesterday (13 July), follows judicial review proceedings lodged by UNISON and other TUC unions.

In Associated Society of Locomotive Engineers and Firemen & Ors, R (On the Application Of) v Secretary of State for Business and Trade [2023] EWHC 1781, Mr Justice Linden said that from 1976 it was unlawful for an employment business “knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action”.

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 made this a criminal offence.

Mr Justice Linden said: “In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation.”

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 were made by the then Secretary of State for Business, Energy and Industrial Strategy, Mr Kwasi Kwarteng, and they came into effect on 21 July 2022.

Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge was on two grounds:

• Ground 1: That he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations.
• Ground 2: By making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members.

Considering Ground 1, Mr Justice Linden said Mr Kwarteng had made his decision to change the rules based on "precious little information", relying instead on a 2015 consultation which predated Covid and the cost-of-living crisis. This, he considered, was "so unfair as to be unlawful and, indeed, irrational".

Mr Justice Linden concluded: “I am not persuaded that it is highly likely that a rational and open minded Secretary of State, conscientiously considering responses to a consultation held in 2022 pursuant to section 12(2) of the 1973 Act, would be highly likely to have come to substantially the same decision.”

The High Court Judge upheld Ground 1 and quashed the 2022 Regulations.

On Ground 2, Mr Justice Linden decided “not to express a view”, noting that: “Unless there is a successful appeal, the effect of my decision on Ground 1 is that the 2022 Regulations are quashed. I make no assumption one way or the other as to whether the Government will wish to pursue the proposal to revoke regulation 7. […] But, if it does, it will be obliged by section 12(2) to carry out a consultation.”

He added: “In the light of that consultation it may or may not be decided that the proposal should be implemented. This, in itself, means that any view which I expressed on the compatibility of such a proposal with Article 11 ECHR would be more hypothetical or academic than is typically the case where a party wins on one ground and the court has to consider whether to decide an alternative ground on which the case is put.”

Commenting on the judgment, UNISON general secretary Christina McAnea said: “No one ever wants to go on strike. But when that difficult decision has been taken, employers should be throwing everything but the kitchen sink at ending a dispute, not inflaming tensions by undermining staff.

“This futile piece of legislation has barely spent a year on the statute book. Parachuting untrained agency workers into the midst of industrial hostilities isn’t fair or safe for them, the public or the staff out on strike."

The other unions behind the action were ASLEF, BFAWU, FDA, GMB, NEU, NUJ, POA, RMT, Unite and Usdaw. NASUWT were also a party to the case.

The Department for Business and Trade has been approached for comment.

Lottie Winson