On 13 July 2023, the High Court upheld the judicial review challenge by 13 trade unions and quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations). The Regulations changed the law from 21 July 2022 to remove the ban on the supply of agency workers to carry out the duties of a striking worker.

In this insight, we set out the key findings and what the decision means for employers (for the full judgment click here).

Background

Our 4 July 2022 insight summarises the government’s plans to allow the use of agency workers during strike action and increase damage awards for unlawfulness that were implemented ‘to minimise the negative and unfair impact of strikes on the British public’.

The legal challenge

13 trade unions challenged the then Secretary of State’s (the SoS) (Kwasi Kwarteng) decision to introduce the regulations, asserting that it was unlawful on the following grounds:

1. The failure to comply with the statutory duty to consult before making the decision (Ground 1). The SoS defended his position on the basis that the duty to consult was complied with by a 2015 consultation on the same issue and it is “highly likely” that the outcome would not have been substantially different had there been further consultation.
2. The Regulations breach Article 11 of the European Convention on Human Rights (ECHR), to prevent unlawful interference with the rights of trade unions and their members (Ground 2). The SoS denied this and, in the event that the Court found that there was interference, argued it was proportionate.

The High Court’s decision

Mr Justice Linden found that the regulations were unlawful on the basis of Ground 1 and that:

• the statutory duty required that consultation in relation to a proposal had to take place before the decision to implement it is taken
• the SoS’s decision on 13 June 2022 to introduce the regulations “was not informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned, not even the views of such bodies which were expressed in [the consultation in] 2015”
• even if the 2015 consultation responses had been properly considered, it would still have been unfair and inconsistent with the aims of [the statutory duty to consult] particularly to ensure informed decision making, given the lapse of time between the 2015 consultation and the introduction of the regulations, given the developments which there had been in the intervening period, given the reasons why the proposal had not been implemented in 2016 and given the professed reasons for wishing to implement it in 2022.

In light of the conclusions made in relation to Ground 1, the regulations were quashed by the High Court and no findings were made in relation to Ground 2.

What to take away

The Quashing Order states that the regulations will be quashed with effect from 10 August 2023. From that date, 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.

The government may appeal this decision but, even if they do so, the Quashing Order will take effect on 10 August 2023 and remain in place until any appeal is decided.

Organisations that have supplied agency workers to replace striking workers during the current period of strike action by junior doctors (13-18 July 2023) and in the imminent period of consultants’ strike action (20-21 July 2023) have done so lawfully and organisations can continue with their plans to use agency workers in this way.

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, for example, use of their own in-house banks and volunteer personnel.

This will remain the position until the government either successfully appeals the High Court’s decision or attempts to reintroduce the regulations after a new consultation process.

How Capsticks can help

Capsticks has been supporting employers and national organisations during the recent industrial action in the health sector. For further information on this decision, please contact Andrew Rowland or Nicola Green.