Agency staff cannot fill in for striking workers says High Court

The High Court has ruled this morning [13 July 2023] that employers can no longer use agency staff to fill in for striking workers during industrial action.

Following a hearing in May at the High Court, Mr Justice Linden today upheld the claims of the Trade Union Congress and 11 other unions, as well as UNISON and NASWUT, that the government “acted unfairly, unlawfully and irrationally” in introducing strike-breaking legislation last summer [2022]. The judge also warned the government that any attempt to change strike laws in future would need to be subject to a rigorous consultation. 

The judgement handed down this morning followed judicial review proceedings lodged by unions last autumn.

The legislation repealed last summer by the law introduced by then-business secretary Kwasi Kwarteng was Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003. This will now be reinstated.

From 1976 to July 2022, regulations made it unlawful for employment agencies to supply agency workers to an employer to carry out the work of employees taking industrial action. 

A variety of commentators have said today that the government ignored significant advice from civil servants that the proposed legislation would be of little benefit and counterproductive.

Commenting on today’s decision, Neil Carberry, CEO of the Recruitment & Employment Confederation, said it came “as no surprise”.

He went on to say: “The law required a level of consideration and consultation that the rushed, politically-driven process of last year simply did not allow for. The government must now act swiftly – while the process has been ruled unlawful, the regulations remain on the statute book, putting agency workers, agencies and client businesses into a world of uncertainty about what the law now is. 

“We encourage the secretary of state to act swiftly to restore the situation that was in place before this ill-judged change was made.”

Also commenting on the ruling, UNISON general secretary Christina McAnea said: “Parachuting untrained agency workers into the midst of industrial hostilities isn’t fair or safe for them, the public or the staff out on strikes.

“With his fingers stuck firmly in his ears, Kwasi Kwarteng ignored the advice of almost everyone around him, showing a total disregard for working people and their historic rights. 

“Hopefully the government has learned a big lesson.”

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