High Court ruling on supply of agency workers during industrial action

On 13 July 2023, the High Court upheld the judicial review challenge regarding the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (‘the Regulations’) which, from 21 July 2022, had removed the ban on the supply of agency workers to carry out the duties of a striking worker taking part in official strike action. See Unison -v-Secretary of State for Business and Trade (judiciary.uk)

Thirteen trade unions challenged the then Secretary of State’s decision to introduce the regulations on the basis that he had not complied with the statutory duty to consult and that the regulations breached Article 11 of the European Convention on Human Rights to prevent unlawful interference with the rights of trade unions and their members.

The High Court found that the regulations were unlawful based on a breach of the statutory duty to consult and has ordered that the regulations be quashed from 10 August 2023.

What do employers need to consider

From that date – 10 August, but not before - the prohibition contained in Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (i.e. the previous ban on the supply of agency workers) will apply.

This means that organisations which have supplied agency workers to replace striking workers during the current junior doctors’ strikes and have arranged to do so during the consultants’ strikes (on the 20 and 21 July) have done so lawfully and organisations can continue with their plans to use agency workers in this way.

Our FAQs on industrial action (FAQs 7.3 and 8.6 were updated on Wednesday 2 August to reflect this point. 

However, from 10 August 2023, the supply of agency workers to cover the duties of those taking industrial action will be prohibited. Organisations thinking of making use of agency workers in the future – to carry out the duties of staff taking strike action - will need to make alternative arrangements.

This prohibition on agency workers replacing striking workers will be effective until the government either successfully appeals the High Court’s decision or attempts to reintroduce the regulations after a new consultation process.

Additional considerations

We recommend that organisations assess their current or future plans around the use of agency workers during periods of industrial action and consider the alternative staffing models available to them, including workers engaged through internal banks.