Member Article

The government's attempt to remove the ban on employment businesses supplying temporary workers to cover striking workers has so far failed. What other options are available to employers to mitigate the impact of industrial action?

The last two years’ have been marked with high profile industrial action across many sectors, including particularly damaging strikes on the railways and in the NHS. With the ban on agency workers being supplied to cover strikers reinstated at least in the short term, employers need to consider other ways of reducing the impact of industrial action whilst keeping a watching brief on developments in this area, given the government’s latest announcement that it intends to consult on removing the ban once again.

Ban on using agency staff

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 introduced a prohibition on employment businesses supplying temporary workers to cover the work of those taking part in official industrial action, or to cover the work normally performed by any other worker who had been assigned to cover the work of those striking. 

In the context of industrial action in the rail sector and other anticipated industrial action in 2022, the government decided to revoke Regulation 7 with effect from 21 July 2022 (2022 Regulations). 13 trade unions applied for judicial review of the government’s decision, and the matter came before the High Court in the case of R (on the application of the Associated Society of Locomotive Engineers and Firemen & Ors) v the Secretary of State for Business and Trade.

The unions argued that the Secretary of State for Business and Trade had failed to comply with his statutory duty to consult before making the 2022 Regulations which revoked the ban on using agency workers. They further argued that the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (ECHR), to prevent unlawful interference with the rights of trade unions and their members. This is understood to be on the basis that if an employer could use agency workers to cover striking employees, it would undermine the purpose and effectiveness of the industrial action. The government’s position was that it could rely on an earlier consultation that had taken place in 2015 on removal of the ban or, alternatively, even if consultation had been carried out the result would have been the same. Further they argued that the 2022 Regulations did not affect the right to strike and even if it did, it was proportionate as it protected against unreasonable disruption to employers and individuals.

The High Court allowed the judicial review application, agreeing with the unions on the consultation ground. As the unions’ case succeeded on the consultation point, the Court did not have to consider the argument that the 2022 Regulations breached Article 11 ECHR. 

What options are employers left with?

As a result of the High Court’s decision, with effect from 10 August 2023 (but not before), Regulation 7 is back in force and employment businesses are no longer able to supply temporary workers to employers to cover those involved in industrial action. 

However, this does not mean that there are no options left for employers facing industrial action who need to ensure their operations continue with the least disruption possible. 

For example, employers can:

• move employees from within their workforce, so long as agency workers are not used to backfill those positions;
• hire fixed term employees directly to cover the work;
• engage temporary workers directly, without using an agency or employment business. 

While taking such steps would undoubtedly creation tensions in an employer’s relationship with the trade union organising the strike and are dependent on the employer being able to quickly identify and put in place those with suitable skills from within and outside its workforce, they are not unlawful and an employers’ ability to take such steps has not (yet) been challenged on grounds of compatibility with Article 11.

What is next?

Although the government reportedly decided not to appeal the High Court decision, on 6 November 2023 it did announce its intention to launch a consultation on removing Regulation 7 across all sectors with a view to reintroducing the equivalent of the 2022 Regulations following the required consultation process. The announcement stated that the consultation would be published in due course. It is interesting that the government seems intent on pursuing this course despite the fact that the wave of recent industrial action seems to be settling down somewhat across sectors and with a general election looming. 

It is possible that a similar challenge from an Article 11 perspective could be levied against the government’s introduction of minimum levels of service during industrial action in certain sectors. However, with a general election and the potential for a new Labour government in 2024, unions may feel such a challenge is unwarranted, given that Labour is unlikely to support either the revocation of Regulation 7 or the minimum service level requirements. This is an area, therefore, which is heavily dictated by the political landscape and it will be interesting to see how things develop over the coming months. 

 

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