Regulations were introduced last year to allow agency workers to cover the roles of striking workers. Those regulations have now been quashed by the High Court, leaving organisations considering how they can provide safe delivery of services during strikes.

The UK has seen a surge in industrial action since the middle of last year, driven by demands for pay increases that would keep pace with rising inflation.

The increase in public sector strikes began in June 2022 with the RMT members voting to strike. Other rail unions followed suit and a series of one day strikes affected rail services across the UK.

The industrial action continued into 2023 including in the education, transport and healthcare sectors.

Government response to industrial action
In June 2022, set against the backdrop of the rail strikes, the then business secretary Kwasi Kwarteng introduced regulations that allowed employment businesses to supply temporary workers to cover the work of those taking part in official industrial action. Kwarteng said at the time that these regulations removed “burdensome, 1970s-style restrictions”.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 marked a significant change. Prior to the introduction of the 2022 regulations it was unlawful to supply agency workers to replace workers taking part in industrial action – a legal position that had been in place since 1976.

Judicial review
A judicial review challenge was brought by a group of 13 unions including UNISON, RMT, TUC and Unite into the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

The unions, who together represent millions of UK workers, argued that the 2022 regulations undermined the right to strike, and were introduced unlawfully without proper consultation.

The High Court’s decision to quash the 2022 regulations means that it will now be unlawful for employment businesses to supply agency workers to directly replace those taking part in industrial action. In reaching this decision, the High Court considered that a proper consultation, which was required by statute, hadn’t been undertaken by the Secretary of State before making the 2022 regulations.

Mr Justice Linden delivered the High Court judgment on 13 July 2023, ruling that the approach taken by ministers was “so unfair as to be unlawful and, indeed, irrational.”

The High Court said that the Kwarteng had acted to change the regulations when “the advice to him was that it would be of negligible short-term benefit and probably be counter productive.”

Mr Justice Linden also said Mr Kwarteng had made his decision to change the rules based on “precious little information”, relying instead on a 2015 consultation which predated Covid and the cost-of-living crisis.

Reaction to the High Court judgment
The judgment has been warmly welcomed by the unions. Commenting on the judgment, 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.”

On the other hand, a Department for Business and Trade spokesperson said: “We are disappointed with the high court’s decision as we believed the decision to repeal the ban on agency workers covering strikes complied with our legal obligations.

“The ability to strike is important, but we maintain there needs to be a reasonable balance between this and the rights of businesses and the public.

“We will consider the judgment and next steps carefully.”

Implications for organisations facing industrial action
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 the Secretary of State being required to hold proper consultations, this U-turn now means they may face unprecedented disruption in agency staff being withdrawn from covering the services provided by striking staff. Of some comfort will be the fact that it is widely understood that these changes will not take place until 10 August 2023 which does provide some time for alternative arrangements to be put in place.

The safety and delivery of services to their service users will be the primary consideration for employers who will now need to immediately revisit their strategies for covering strikes.

Alternative options to ensure service delivery during strikes
There are, however, options for employers in providing alternative cover.

There is no prohibition on using agency workers to backfill the work of those employees or casual workers covering the work of their striking colleagues.  As such employers may wish to consider reverting to using this approach.

Other options include:

• the temporary outsourcing of service provision in affected areas to a third party.
• Using existing employees or casual/bank workers to cover the work of those striking
• In appropriate sectors, exploring with neighbouring organisations the possibility of borrowing staff where industrial action isn’t impacting the neighbouring organisation
• Engaging temporary workers directly without using an employment business.

Where the above options are not possible, or not sufficient, employers will need to consider other steps in order to continue safely operating. These may include:

• Considering whether annual leave requests should be granted at the time of a strike
• Potentially cancelling training/study leave
• Focusing on critical cover on days of strike action
• Considering approaching recent retirees, those on career breaks or those on maternity leave who may be able to do keeping in touch days.

The future
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.

It is also worth remembering that the government is considering other measures to minimise the effectiveness of strikes, including ensuring that unions and workers are legally bound to provide some services during planned industrial action. The Strikes (Minimum Service Levels) Bill is still going through parliament and it will be interesting to see how this now progresses.