Despite a successful union challenge in July to the government’s proposal to introduce regulations allowing agency workers to fill in for striking workers, it has now issued a consultation on doing just that.
Regulation seven of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 – which has been in force since 1976 - prevents employment businesses from supplying employers with workers to fill in for those on strike. The government argues that this regulation is no longer appropriate “given the shape and nature of the modern UK economy”.
However, in its scathing judgment in July to the government’s proposal to lift the ban, the High Court found that the decision by the then-business secretary Kwasi Kwarteng not to consult unions, as required by the Employment Agencies Act 1973, was “… so unfair as to be unlawful and, indeed, irrational.”
The successful challenge was brought by a coalition of 11 major unions - Aslef, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw - coordinated by the TUC. The unions were represented by the Trade Union Law Group team at Thompsons Solicitors. In addition, UNISON and NASUWT brought claims in their own right.
In bringing a judicial review challenge, the unions argued that the decision to repeal regulation seven was unlawful because:
- The then Secretary of State for business failed to consult unions, as required by the Employment Agencies Act 1973.
- It undermined the human right to strike, protected by Article 11 of the European Convention on Human Rights.
Richard Arthur, head of the union law team at Thompsons, commented at the time that the High Court’s decision was “a significant victory for the entire trade union movement and preserves a vital safeguard in ensuring the right to participate in industrial action is effective”.
The purpose of this consultation is, apparently, to ensure that before reaching a final decision on whether to repeal regulation 7 the Secretary of State is “aware of all relevant views and evidence”. despite the scale of opposition from employers and workers to the previous proposal.
As the body representing the suppliers of agency workers has pointed out, “Neither agencies or trade unions think this change promotes effective strike resolution or protects agency workers…. Inserting a third party like this into an industrial dispute may end up extending the dispute, not least by inflaming tensions”.
Indeed, the government’s own impact assessment says the change to the law will poison industrial relations and prolong strikes and will result in “worsening in the relationship between employers and workers – which could lead to more prolonged strike action in the short-term".
To access the consultation document, click here.
To access the impact assessment, click here.
To read Thompsons’ press release on the High Court judgment, click here.
The consultation runs from 16 November 2023 to 16 January 2024.