427: High Court rules employment agencies can no longer supply temporary workers to cover strikes

Under Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, employment businesses were prohibited from supplying temporary workers to cover the duties of workers taking part in official industrial action. The 2015 Conservative Manifesto included a commitment to repeal this provision and shortly after coming to power, the Government issued a consultation on the proposal. The majority of responses to the consultation were not favourable and no formal response to the consultation was ever published. However, on 21 July 2022, against the background of industrial action in the rail industry as well as anticipated strikes in other sectors, and without further public consultation, the Government revoked Regulation 7 by means of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

These amending Regulations were then challenged in judicial review proceedings brought by 13 trade unions including ASLEF, Unison, and the National Association for Schoolmasters/Union of Women Teachers. The unions’ main argument was that the Government had failed to comply with its statutory duty to consult prior to implementing the new Regulations.

Agreeing with the unions’ arguments, the High Court has now quashed the 2022 Regulations, ruling that the Government’s approach was unfair and irrational. The High Court held that the Government had revoked Regulation 7 at exceptional speed, without the required consultation with representative bodies, and without an impact assessment. The Court was also critical of the Government’s arguments that its duty to consult was satisfied by the 2015 consultation and that in any event it was highly likely that the outcome would not have been substantially different had consultation taken place.

This decision means that with effect from 10 August 2023, the law has reverted to the position as it was before 21 July 2022. Employment businesses are therefore no longer able to supply temporary staff to cover striking workers. It is not clear whether the Government will appeal against the judgment to the Court of Appeal, or undertake the required consultation and then re-introduce the Regulations to Parliament.