Key takeaways

• In July 2022, the law changed to allow employment businesses to supply workers to cover the duties of those taking part in official industrial action. Previously, it had been a criminal offence to do so.  
• Following a successful judicial review challenge brought by unions, that law has been quashed. 
• From 10 August 2023, it will once again be a criminal offence to supply agency workers to cover the duties of workers on an official strike, or to supply agency workers to cover the duties of other workers reassigned to cover striking workers.
• For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie.

In more detail

Until July 2022, employment businesses committed a criminal offence under the Employment Agencies Act 1973 and secondary legislation if they supplied agency workers to replace workers taking part in an official strike (or to cover the duties of a worker who had themselves been reassigned to perform the duties of an officially striking worker). In 2015, the then government consulted on trade union reforms, which included a proposal to revoke this law. A majority of the responses to the consultation were against the proposal. However, the consultation was declared unfit for purpose, no formal response was published, and the revocation was dropped. In June 2022, with a backdrop of widespread strikes in rail and other sectors, the government announced that it would be relying on the 2015 consultation to change the law.

On 21 July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force. The Regulations allowed employment agencies to supply staff to cover striking workers provided the temporary workers had the required skills to carry out the necessary duties.

13 trade unions brought claims for judicial review of the Regulations. They claimed that the government had failed to comply with the requirements for consultation under the Employment Agencies Act, and that the removal of the ban on using agency workers was unlawful interference with the rights of trade unions and their members under Article 11 of the European Convention on Human Rights. The Secretary of State for Business and Trade argued that the 2015 consultation had met his duty to consult, and in the alternative that relief should be refused since it was highly likely the outcome would not have been substantially different if he had consulted further; he also denied that there was any interference with ECHR rights and any such interference would be proportionate.

The High Court found that the Regulations were unfair, unlawful and irrational and should therefore be quashed. The purpose of the consultation duty required the Secretary of State to take into account the views and evidence of those who are likely to be well informed, and reassuring Parliament that the measure has been tested with interested parties. The Secretary of State had not consulted before the Regulations were introduced, nor even tested the decision against the views of unions and others expressed in 2015. The judge noted that the decision to revoke the then law proceeded “at exceptional speed, despite [concerns] about Parliamentary scrutiny, and without any further consultation at all”.  There was no evidence that a shortened consultation or one with a more limited group of consultees was considered. There was also no impact assessment at the time of the decision. It was not likely that a rational and open-minded Secretary of State, conscientiously considering the responses to a consultation held in 2022, would have come to the same decision.  

Having found for the claimants on the above, the High Court did not express a view on the argument that the Regulations were a breach of Article 11 ECHR.  

Since the Regulations have been quashed, previous law will apply once more. This means that until any further legislation is passed, from 10 August 2023, it will once again be a criminal offence to supply agency workers to cover the duties of workers on strike.  If the government wishes to pursue the proposal again, it will need to hold a public consultation and consider the responses when deciding whether to implement it.