Strike-Breaking Legislation Quashed in Judicial Review

In a major blow to the Government, new regulations which permitted employers to use agency workers to replace those on strike, has been found to be unlawful and so has been quashed, removing it from the statute books.

In the case of R (on the application of ASLEF and  Ors) v the Secretary of State for Business and Trade, the High Court has provided judgment in the judicial review and have quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) (“the Regulations”).

Background

We previously wrote about changes being introduced by the government to limit unions being able to strike.  A major change initiated by the Government was in July 2022 introducing the Regulations as a tool to enable employers to limit the impact of strikes on their organisation.

Since 1976 agencies were prevented from supplying an employer with agency workers to perform the duties performed by striking staff. However, the Regulations changed the law so that there was no ban on engaging temporary workers when industrial action is taking place.

Previously in 2015, the Government conducted a public consultation on a proposal to revoke legislation so that agency workers could replace those on strike. However, the majority of the responses did not favour this change in the law, and it was decided not to go ahead.

Fast forward to 2022 and in the midst of severe strike disruption, the Regulations were passed. So controversial was the introduction of the Regulations, that 13 trade unions submitted a judicial review to challenge the Government’s decision. In December 2022, permission was granted to proceed with the legal challenge and now the unions have received a successful judgment quashing the Regulations.

Analysis

The challenge against the Regulations was made on two grounds:

• The Government failed to comply with its statutory duty to consult before making the Regulations;
• By making the Regulations, the Government breached its 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.

In considering the first ground, the High Court had to consider whether the Government had complied with the Gunning Principles (governing public consultation requirements). Mr Justice Linden in his judgment, found that the Government had failed to properly consult and so the Regulations should be quashed.

As consequence of the first ground succeeding, the second ground of challenge relating to the alleged breach of Article 11 was not considered as his judgment on this point would be ‘more hypothetical or academic than is typically the case where a party wins’.

Comment

Public sector organisations continue to find themselves impacted by intense disruption from strikes both directly and indirectly. Given the great impact there may be a desire to find solutions. However, as this case highlights, industrial action is a complex and fast-moving area of law. As such it is essential that key developments are followed closely.

The Minimum Service Levels Bill which also seeks to limit the ability of trade unions to organise strikes has not yet become law. However, if/when it is enacted it can be expected to be subject to intense scrutiny and potentially further challenge from unions. Public Sector Organisations will have to remain flexible in managing strike action and account for quick changes to the law.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.