Last year, the government rushed through legislation that overturned a ban on employers using agency workers to cover the work of staff who were on strike. These rules had been in place since 1976 and many commentators saw the 2022 Regulations as a blatant attempt by the government to undermine the effectiveness of strike action at a time when the number and frequency of strikes were increasing.
Following a legal challenge by thirteen unions, the High Court today (13 July 2023) struck down the Conduct of Employment Agencies and Employment Companies (Amendment) Regulations 2022. This means that this Regulation has no legal effect and that the law returns to its state. previous position Employers cannot now hire agency staff to cover for workers on strike and employment agencies will commit a criminal offense if they supply staff on this basis.
Why did the High Court revoke the Regulation?
The unions argued that the Regulations were unlawful because:
The government had failed to comply with its statutory duty to consult before making the Regulation (main first), and had failed to comply with its duty, under Article 11 of the European Convention on Human Rights, to prevent interference il· legal in the rights of trade unions and their members (second basis)
On the first point, the government argued that it had previously consulted on making these changes in 2015, but had decided not to go ahead with them at that time. The High Court said that was not enough. He noted that the government had decided to move forward at “exceptional speed” and without regard to the responses to this consultation. It had prepared an impact assessment in 2022 which concluded that the policy change would be “net beneficial”, but had no hard data to support this claim, nor had it been tested by consultation. Furthermore, the government had failed to show that it had listened to the strong criticism of the measures from unions and employment agencies, or reflected on advice given that changing the law would have negligible short-term benefits and could be harmful
The High Court upheld the first ground and decided not to express an opinion on the second, more controversial ground.
You can read the full judgment in ASLEF and others, UNISON and NASUWT v The Secretary of State for Business and Trade here. It’s 207 paragraphs long and not a quick read!
Can the government appeal?
Yes, but you will have to convince the Court of Appeal that you have reasonable grounds for doing so. You can’t appeal because you don’t like the decision. And even if an appeal is issued, it can take many months for the case to be heard.
It could also go through a proper consultation process and re-introduce the Regulation once it is complete. But it won’t be a quick process either.
Where does this leave employers?
In the same position as it was before the introduction of this Regulation. You may not use agency personnel to cover for workers on strike, or to cover the work of an employee covering the duties of another employee participating in a strike or other industrial action.
However, you can:
Continue to use pooled staff that you use directly to cover striking employees. Move existing employees from other parts of the company (or group) to cover for striking employees: This can be inflammatory, but it’s not illegal. Continue to use agency workers already working for you before a strike was announced for the original purposes for which they were hired. However, they should not be reassigned to the roles normally performed by colleagues participating in the industrial action. Replace any agency worker who leaves provided the replacement does only the same work as the departing worker.
Source link
