The UK High Court ruled last month that using staffing firm workers to cover for workers on strike is unlawful. The decision reversed last year’s controversial legislation put forward by former Prime Minister Boris Johnson’s government.
Following the High Court’s ruling, the government said it will not appeal the decision. This means that after Aug. 10, organizations in the UK will not be able to use temporary agency workers to cover for staff on strike.
The controversial law was overturned following a legal challenge led by 13 unions and coordinated by the Trades Union Congress. The unions had argued that last year’s agency worker regulations are unlawful because the then-secretary of state for business failed to consult unions, as required by the Employment Agencies Act 1973, and because they violate fundamental trade union rights protected by Article 11 of the European Convention on Human Rights.
Impact on Contingent Workforce Ecosystem
The reversal is set to have ripple effects across the UK labor market despite last year’s controversial law having been in effect for just over a year. While the UK has seen industrial action across a number of sectors in the past year, the latest ruling means any employers that were filling — or planned to fill — staffing gaps with staffing firm workers will no longer be able to from Aug. 10. Furthermore, unions have reported intensified strike action following last month’s ruling.
Before the short-lived law was enacted, it had been unlawful since 1976 for an employment business to knowingly introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action.
Regulations made pursuant to Section 5 of the Employment Agencies Act 1973, most recently Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, made this a criminal offense.
“The High Court’s ruling means that Regulation 7 of the 2003 Conduct Regulations is reinstated,” says Fiona Coombe, director of legal and regulatory research at Staffing Industry Analysts. “This states it is unlawful for an employment business to introduce or supply a work-seeker to a hirer to perform either the work of a permanent employee who is taking part in lawful industrial action or the work of an employee who has been moved to cover for the striking worker.”
Coombe adds, “Employment businesses have a defense if they didn’t know or had no reasonable grounds for knowing that the employee was involved in industrial action. With the level and immediacy of news reporting about strikes, the defense is a difficult one to sustain these days.”
“The majority of employment businesses have lived with a ban on replacing striking workers since the 1970s, and most were extremely reluctant to do so when the law was changed last year. In practice, the ruling will not result in any change to enterprise buyers or suppliers,” Coombe says.
Outlook on Ruling
The government’s decision not to appeal the High Court ruling will provide immediate and much-needed certainty for companies and workers, says Neil Carberry, chief executive of the Recruitment & Employment Confederation.
“We hope that the government decides to let this matter rest now,” Carberry says. “It may choose to table [put forward] replacement regulations, but these cannot be rushed considering the judgment of the High Court.”
Separately, Parliament last month approved the Strikes (Minimum Service Level) Act, which ensures workers maintain the ability to strike while giving the public access to the essential services they need. Minimum service levels will ensure a minimum service operates in specified services during periods of strike action.
