Temporary ability to engage agency workers during strikes comes to an end

From 2003, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevented employment businesses from providing temporary agency workers to replace individuals taking part in official industrial action.

In July 2022, with industrial action making headlines in the UK, the Government announced that Regulation 7 would be revoked, which enabled employers to hire agency workers to cover for striking workers.

A judicial review of the decision to revoke Regulation 7Thirteen trade unions sought a judicial review of this decision, arguing that there had been a failure to consult before the implementation of the Government’s decision. They also argued that it was a breach of duty under the ECHR Convention on Human Rights to prevent unlawful interference with the rights of trade unions and their members.

The High Court heard the judicial review application this month and upheld the application. The court considered that the Secretary of State had failed to consult about the changes and had not shown that the outcome would have been the same even had consultation taken place.

The outcome is therefore that with effect from 10 August 2023, employment businesses will no longer be able to provide temporary agency workers to cover workers taking industrial action.

The Government could appeal the decision or could now seek to consult properly about introducing the provisions, but until they do so, we have reverted back to the pre-2022 position.

If you have any queries you would like to discuss regarding strikes and the removal of agency workers, please contact a member of our Employment Law team.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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