Unions secure High Court victory in agency workers case
Our employment consultant, Paul Scholey, examines a significant victory for unions as the High Court rules government legislation introduced last year is unlawful.
In R (on the application of ASLEF and Ors) v Secretary of State for Business and Trade, the High Court has upheld a judicial review challenge brought by 13 trade unions to the government’s decision in 2022 to remove the prohibition on employers using agency workers to cover for employees on strike.
Since 2003 it has been unlawful for employers to replace their own striking workers with agency staff.
The government consulted about making a change – to permit the use of agency workers – in 2015. The response to the consultation was lukewarm, to put it mildly. Even the agencies (which one might have thought would welcome the change) said that it was unworkable – how could agency workers be expected to cross picket lines to do the jobs of those very pickets?! The government did not press ahead.
Of course, the industrial landscape looked very different by 2022. Over the last 18 months the government has set about systematically undermining the right to strike (witness e.g., the quadrupling of fines for trade unions and the currently-progressing “Minimum Service Levels” Bill – although one might argue that their assault on collective rights has been ongoing for years).
In 2022 Kwasi Kwarteng rushed through a new set of regulations – purporting to rely on the consultation in 2015. The High Court has now decided that he failed in his duty meaningfully to consult about the new regulations.
In a scathing judgment the Court said it was “indicative of [the Secretary of State’s] lack of interest in evidence or views about the impact and desirability of the proposal … that the decision was to proceed at exceptional speed … and without any further consultation at all”. Bearing in mind of course, that the evidence from the 2015 consultation was that a) no-one wanted the change and b) it was likely to be counterproductive anyway.
It is a significant victory for the unions, and a well-deserved rebuke for the government. The only downside to the judgment, in our view, is that the Court declined to consider whether the government had also breached unions’ rights to freedom of association – since it wasn’t necessary for them to do so, having come down in the unions’ favour on consultation.
We expect those human rights arguments to arise again, in relation to the minimum service levels legislation.
Author: Paul Scholey, Employment Consultant
