The High Court has today handed down its judgment upholding a judicial review application by 13 trade unions. The Court agreed that regulations introduced by the Government last year, permitting agency workers to be used to cover for striking staff, were unlawful. The regulations have been quashed with immediate effect.
On 21 July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (2022 Regulations) came into force, revoking regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (2003 Regulations). Regulation 7 made it a criminal offence for employment businesses to supply agency workers to cover duties normally performed by a worker who is on strike or taking industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker. As a result of the 2022 Regulations, employment businesses were no longer prevented from supplying an employer with agency workers to cover for striking workers.
The 2022 Regulations were the subject of a judicial review application on behalf of several trade unions. Following a hearing of the application in May, the Court has today upheld the application on the basis that the Secretary of State (Kwasi Kwarteng) had failed to properly consult on the 2022 Regulations, as required by section 12(2) Employment Agencies Act 1973. A consultation had previously taken place in 2015, following which the Government had decided not to go ahead with the revocation of Regulation 7 of the 2003 Regulations.
The 2022 Regulations, revoking Regulation 7, were introduced without any further public consultation because the Government, led at the time by Boris Johnson, wanted to take swift action in the face of increasingly disruptive industrial action. The Court concluded the Secretary of State's approach to be "so unfair as to be unlawful and, indeed, irrational" [191]. The consultation carried out in 2015 did not discharge the Government's duty to consult in respect of the 2022 Regulations, and there was no evidence that the Secretary of State had even taken into account responses to the 2015 consultation.
What does this decision mean?
The revocation of the 2022 Regulations means that Regulation 7 of the 2003 Regulations is reinstated with immediate effect. This means that agencies who continue to supply agency workers to cover for striking staff after today will be committing a criminal offence.
If the Government seeks to reintroduce the legislation, it will be required to undergo a full consultation process.
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