Strike Law Change Overturned

In the case of R (on application of ASLEF & Ors) v Secretary of State for Business and Trade, the High Court has today (13.7.2023) ruled in favour of 13 unions applying for judicial review, that legislation passed last summer removing the restriction on the supply of agency workers to employers in order to cover labour shortages arising from strike action is unlawful.

As such, following today, employers can no longer use agency staff to fill in for striking workers during industrial action.

Until last summer, it had been illegal in the UK to supply agency workers to employers to cover the jobs of staff on strike for nearly 40 years. However, the then Business Secretary passed urgent legislation to remove this restriction with no public consultation (as is required under the Employment Agencies Act 1973) before passing the new legislation, which effected the revocation. The High Court accordingly relied on this failure to quash the new Regulations.

Interestingly, the Conservative Manifesto at the 2015 general election proposed repealing the restriction on the supply of agency workers to employers to cover strike action so as to lessen the impact of strike action on the wider economy. A consultation on the matter was commenced in July 2015, soon after the Government came to power. Most responses did not favour the change in the law and the Government decided not to proceed. However last summer, due to the long running industrial action in the rail sector in particular, the Government decided, to introduce new legislation to revoke the restriction with no new public consultation and which was implemented on 21 July 2022. Further, the Court concluded that the Government had not even relied on the consultation undertaken in 2015 on the same issue, which was “indicative” of the then Secretary of State’s lack of interest in evidence or views about the impact/desirability of the proposal to revoke the restrictions.

As such, as of today 13^th July 2023, the right of an Employment Business to supply agency staff to employers facing strike action where the agency workers will be used to fulfil the work of workers engaging in strike (whether directly or indirectly) is unlawful once again.

This is a blow for employers as it limits the options available to employers facing strike action to try and keep operations running. However, the reality is that the use of agency workers at short notice is not always straightforward due to the need for proper training to comply with Health and Safety obligations.

There are other options available to an employer to try and keep operations moving and the Industrial Relations team at Afterathena would be happy to advise any employer facing strike action.

Author – Oli McCann – Employment Partner and part of Trade Union Law team.

Disclaimer: this post has been produced for our website/app blog and does not constitute legal advice.