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Strikes and Use of Agency Workers

19/07/2023

Strikes and Use of Agency Workers

On 13 July 2023, the High Court handed down its Judgment of R (ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin), which quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

These Regulations had allowed employment agencies in Great Britain to supply workers to cover employees on strike. The Regulations were challenged to the High Court by thirteen different unions by way of a judicial review.

The challenge was on two grounds, namely:

  1. The Government failed to comply with its statutory duty to consult before making the 2022 Regulations (“Ground 1”).
  1. It was contended that, by making the 2022 Regulations, the Secretary of State had 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 (“Ground 2”).

In a fifty-page Judgment, Mr Justice Linden allowed the challenge to proceed on Ground 1 only, finding that there was inadequate consultation.

The High Court declined to comment on Ground 2, i.e. whether  the Regulations had breached Article 11 of the European Convention on Human Rights, stating amongst other points that:

  • any comment the Judge would make would be obiter; and
  • if consultation were to be carried out, the basis of the evidence as it currently stands could change and would potentially lead to further complication and/or the Judge’s decision might well prove to be redundant.

This Judgment will be welcomed by Employment Agencies who were placed in an invidious position. The Recruitment and Employment Confederation (who are the voice of the recruitment industry) did not support the Regulations and spoke out against them when they came into force. However, it may not be the end of the line for the Regulations; and if government remains intent on bringing them into force then they can now either consult on the Regulations or appeal the Judgment.

As employment law is devolved, the Regulations never applied to Northern Ireland and even if Stormont is restored we doubt that anything similar would be brought in here.