Employment law: Court decides it is illegal to employ agency workers to replace striking employees

Thirteen Unions banded together to raised proceedings in the High Court in England against the Secretary of State for Business and Trade. The purpose of the proceedings was to determine the status of business who employed agency workers as cover for striking workers. The court ruled that not only is it illegal for employers to engage agency staff to replace striking employees, but also any employment agency supplying workers will be committing a criminal offence.

The Background

In July 2022, when the UK government was facing several ongoing disputes in the public sector, it removed a law which prevented employers from contracting agency workers to replace striking staff. This would mean that when workers went on strike, employers could then hire agency workers to replace them during strike days.

However, the Unions involved in this action claimed this change in the law was unlawful.

The UK government’s argument

The UK government argued that it did not need to have a further consultation on the changes proposed because they had consulted about their proposed changes in 2015. They did admit that they decided not to go ahead at the time following that consultation. They said that they had prepared an impact assessment on the proposed changes in 2022 and had reached the conclusion that the change in policy would be “net beneficial”. However, they could not produce data to back up that claim.

The Unions’ argument

The Unions argued that the UK government had not complied with its statutory duty to consult before making this change in the law. In addition, they argued that the UK government had breached the European Convention on Human Rights (ECHR). Article 11 of the ECHR states that there should be no interference with the rights of trade unions and their members.

The Judgement

The judge, Mr Justice Linden, found in favour of the Unions in the case. Importantly, the judge considered the UK government introduced the change without it being tested through proper consultation. Indeed, in his conclusion, the judge said: “I am not persuaded that it is highly likely that a rational and open-minded Secretary of State, conscientiously considering responses to a consultation held in 2022 pursuant to section 12(2) of the 1973 Act, would be highly likely to have come to substantially the same decision”.

On the basis that the judge had found in favour of the Unions on ground one of the case, he said he did not need to consider the question of the breach of Article 11 of the ECHR.

This now means that any employer who engages agency staff to cover the duties of striking employees or employees who are covering the work of striking employees, will be guilty of an offence. In addition, any employment agency providing staff to cover for striking employees will be guilty of a criminal offence.

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The case concerned is ASLEF v Secretary of State for Business and Trade [20223] EWHC 1781 (Admin). You can read the judgement in full by clicking here.

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