Striking workers
A number of sectors have exercised their right to strike in the last year or so. The law in this area goes back a long way – including the ban on employers taking on agency staff to cover for striking workers.
From 1976, it has been unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. It subsequently became a criminal offence for employers to take on agency workers in these circumstances.
Strikes on the railways and in the NHS have caused particular issues for the public and the government's response in July 2022 was to introduce Regulations permitting employers to employ agency staff in place of striking workers. The Regulations applied across all sectors and proved controversial from the start.
Thirteen trade unions challenged the Regulations in court. The basis of the claim was that the government failed to consult before introducing the Regulations permitting the employment of agency workers during a strike and 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.
In mid-July 2023, the High Court upheld the claim and quashed the Regulations. The Court rejected the government's argument that a consultation carried out some years earlier was sufficient. Somewhat damningly, the Court referred to the governments 'lack of interest in evidence or views about the impact and desirability of the proposal' to allow employers to employ agency staff and observed that the government seemed intent on proceeding at 'exceptional speed'.
On the basis that the Court upheld the first ground, and quashed the 2022 Regulations, the Court decided not to express a view regarding Article 11 of the ECHR.
The effect of the decision is that, from 10 August 2023, employers are in the same position as they were before the 2022 Regulations were introduced, namely that they cannot use agency workers to cover the duties of those staff who are taking industrial action. Employers will need to use existing staff or even volunteers.
The government states that it is considering its position, so an appeal against the decision is possible although it is worth noting that the government cannot submit an appeal just because it disagrees with the decision. Even if the government submits an appeal, the employment of agency workers to cover striking staff would remain unlawful until any such appeal was successful.
This is a complex area because employers are permitted to move existing employees from other parts of their business to cover for staff taking industrial action and could continue to use agency workers already working for the employer before the strike action was announced. However, employers would need to tread carefully in the circumstances and may wish to take specialist legal advice.
Interestingly, the government website advising employers on what to do if its business faces industrial action has not been updated.
To discuss this or any other employment matter, contact us.