Back in Spring 2022 the Secretary of State, through the passing of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations), revoked the historic prohibition on employers using agency workers to replace striking workers. The legality of the Regulations were challenged by a number of trade unions in the case of R (on the application of ASLEF and others) v Secretary of State for Business and Trade on two grounds:
The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).
The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2. This means that, unless and until further legislation is brought forward, businesses are no longer able to use agency workers to cover for striking workers.
- That the Secretary of State had failed to comply with their statutory duty to consult before making the Regulations (Ground 1); and
- That the Secretary of State breached their duty, under Article 11 of the European Convention on Human Rights, to prevent unlawful interference with the rights of trade unions and their members (Ground 2).
The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).
The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2. This means that, unless and until further legislation is brought forward, businesses are no longer able to use agency workers to cover for striking workers.
