The High Court has upheld a judicial review challenge in R (on the application of ASLEF and ors) v Secretary of State for Business and Trade.
The challenge was brought by 13 trade unions in relation to the revocation of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 by virtue of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.Regulation 7 prohibited employment businesses from supplying temporary workers to cover the work of those taking part in official industrial action until 21 July 2022, when it was revoked.
The trade unions asserted that: (a) the Secretary of State had failed to comply with his statutory duty under section 12(2) of the Employment Agencies Act 1973 to consult before making the 2022 Regulations; and (b) breached his duty, under Article 11 of the European Convention on Human Rights (ECHR), to prevent unlawful interference with the rights of trade unions and their members. The High Court upheld the challenge on the consultation ground and, having done so, preferred not to express a view on the Article 11 ECHR ground.
The High Court's quashing order provides that, with effect from 10 August 2023, the law will revert to the position before 21 July 2022 and so employment businesses will no longer be able to supply temporary workers to employers to cover those involved in industrial action.
Take note: The lifting of the prohibition on using agency staff to cover striking workers has only lasted a little over a year. Employers need to be mindful that, as of 10 August, it will no longer be legal to use temporary workers to cover any shortfalls caused by strike action.
