The High Court have yesterday, following a judicial review challenge from a number of unions, quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. These regulations had the effect (contrary to previous legislation) of allowing employment businesses to supply temporary workers to cover the work of those taking part in official industrial action. To do so, following yesterday’s decision, will now be unlawful. The High Court, in reaching this decision, considered that a proper consultation which was required by statute hadn’t been undertaken by the Secretary of State before making the 2022 regulations.

With a number of sectors currently experiencing strikes (particularly in the healthcare, education and transport sectors), this change will no doubt have implications for organisations seeking to cover the ongoing effects of industrial action. Whilst most employers would absolutely support the premise behind holding proper consultations as required by statute, this U-turn now means they may face unprecedented disruption in agency staff being now unable to cover the services directly provided by striking staff. The safety and delivery of services to their service users will be the primary consideration for employers who will may now need to immediately revisit their strategies for covering strikes.

There is however, no prohibition on using agency workers to backfill the work of those employees or casual workers covering the strike action of their colleagues. As such employers may wish to consider reverting to using this approach, or consider using other options including the temporary outsourcing of service provision in affected areas to a third party.

The Department for Business and Trade have said they will consider the judgment and next steps carefully, so an appeal could be on the cards.

If you wish to discuss this further, please contact our industrial action experts Sarah Wimsett, Associate, Alastair Currie, Partner or Heather Stickland, Senior Associate.

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