High Court quashes legislation that allowed agency staff to cover strikes

Legislation which allowed employers to use agency workers to cover for nurses who go on strike has been ruled “unlawful” by the High Court, following a legal challenge by trade unions.

The decision comes as last summer the then business secretary, Kwasi Kwarteng, made controversial changes to the Conduct of Employment Agencies and Employment Business Regulations 2003 amid the height of the rail strikes taking place across the UK.

The amendment removed restrictions which prevented businesses from supplying temporary agency workers to cover employees who are taking part in strikes.

In response Unison joined the Trade Union Congress (TUC), which made a case on behalf of 11 other unions, and brought legal proceedings against the changes in a bid to protect the right to strike.

The unions argued that Mr Kwarteng had not consulted them on the matter and that the law interfered with the rights of trade unions and their members.

Following a hearing on these claims, the High Court ruled on 13 July that the regulations were unlawful on the basis that Mr Kwarteng had failed to consult unions.

As such, Mr Justice Linden ordered that the regulations be quashed from 10 August 2023.

From this date, the supply of agency workers to cover the duties of those taking industrial action will be prohibited.

Responding to the judgement, Unison general secretary Christina McAnea said: “This futile piece of legislation has barely spent a year on the statute book.

“Parachuting untrained agency workers into the midst of industrial hostilities isn’t fair or safe for them, the public or the staff out on strike.”

Ms McAnea added that the High Court decision was “embarrassing for ministers”.

She said: “Hopefully, the government has learned a big lesson.

“If ministers act in haste, they’ll end up repenting at leisure, as this judgment proves."

In addition, Ms McAnea has called on the government to "ditch their ill-advised strikes bill", which recently became law despite union pushback.

The new law will give ministers the power to impose new minimum service levels when industrial action takes place across key sectors including health, education and transport.

As part of this, employers will be able to provide work notices to employees who have voted to strike, meaning they will have to work to maintain the minimum service levels.

TUC general secretary Paul Nowak also called for the anti-strike legislation to be scrapped amid the latest ruling from the High Court.

He said: “This defeat is a badge of shame for the Conservatives, who have been found guilty of breaching the law.

“The government railroaded through this law change despite widespread opposition from agency employers and unions.

"The courts even found ministers ignored evidence that the measure would be counterproductive.

“This is the same reckless approach behind the anti-strike bill, which has faced a barrage of criticism from employers, rights groups and international bodies, and which has been amended by the House of Lords on three separate occasions during parliamentary ping-pong.

“Ministers should spare themselves further embarrassment."

A Department of Business and Trade spokesperson said: “We are disappointed with the High Court’s decision and having considered the judgement we have decided not to appeal.

“We will be updating our guidance soon to reflect this decision.”