In July last year the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations) were brought in by the then Secretary of State, Kwasi Kwarteng. Under these regulations, employers were legitimately entitled to engage agency workers during a period of industrial action undertaken by their employees.
The Regulations were a stark contrast to the previous position contained within Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. This set out that agencies were prohibited from supplying workers where industrial action was being taken, to perform duties normally provided by a worker taking part in industrial action. Clearly, the concern regarding employers being able to engage agency workers during strikes is that they were mitigating against the disruption to the business and undermining the purpose of taking industrial action.
The implementation of the Regulations was challenged by 13 unions by way of a judicial review on the grounds that the Secretary of State failed to comply with the statutory duty under the Employment Agencies Act 1973 to consult before bringing in these new regulations and alleging the Regulations to be a breach of Article 11 of the European Convention on Human Rights. Article 11 provides the right to freedom of assembly and association which of course includes trade union industrial action. There was a consultation conducted by the Government in 2015 into this matter, but the idea was not progressed due to the points raised during the consultation.
This legal challenge was heard by the High Court with the judgement received on the 13th July. It was held that the Regulations are unlawful because a consultation should have taken place before the decision to implement the Regulations was made. It was said that the 2015 consultation (if it had been considered before implementation of the Regulations which the Governed argued it had) would not be sufficient due to the passage of time, the changes in industrial relations and the changes to the UK labour market in that period, and so a fresh consultation should have taken place. The High Court decided that if a consultation had taken place, the Government would not have introduced the Regulations.
So, from the 10th August the Regulations were quashed, meaning we revert to the old (long held) position that engaging agency workers for this purpose is prohibited. The reality is that not all employers will have benefited from the freedom to backfill positions with agency workers during industrial action because they require the skills and expertise of their trained employees which agency workers are simply not able to provide. However, for those sectors which are able to draft in agency workers without too great an impact on the business, they will be disappointed by the ruling. Employers should be alert to this change to ensure that they are not acting in breach of the Regulations by contracting in agency workers to cover any periods of strike action by their employees.