With strikes becoming more drastic and more people participating, changes to the law on strikes were bound to be called into question. This article will outline two significant changes to the rules around industrial action: the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 being quashed and the new Strikes (minimum level service) Bill.
Can agency workers replace employees on strike?
A recent High Court judgement found that the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which came into effect July 2022 are unlawful.
The background on supplying agency workers
Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibited employment business to send out agency workers who would replace workers participating in strikes. This is commonly called strike-breaking.
In 2015, the Government held a consultation in relation to repealing this regulation, but with majority opposed, the Government decided against it.
However, in 2022, with ongoing industrial action and no solutions, the Government decided to repeal the regulation with no further consultation. Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 were created to repeal regulation 7 of the 2003 regulations.
Judicial review
A judicial review challenge was brought by 13 trade unions in the case of R (on the application of ASLEF and ors) v Secretary of State for Business and Trade. The challenge was made on two grounds
- the Government wrongly failed to consult on the regulation first, as per s12(2) of the Employment Agencies Act 1973 (ground 1),
- and breached Article 11 of the European Convention of Human Rights (ECHR) by interfering with the rights of trade unions and their members by repealing regulation 7 (ground 2).
The Government relied on the 2015 consultation in order to satisfy its duty to consult, denying that the regulations interfered with any rights of the unions or their members, and that even in the event they did, any interference was proportionate.
High Court Decision
In relation to ground 1, the Court had to decide whether there was sufficient evidence that the Secretary of State consciously considered the 2015 consultation when making the 2022 regulations. The court ruled that there was no evidence of this, and therefore did not fulfil his statutory duties.
As well as this, circumstances had changed drastically between 2015 and 2022, and the Secretary of State could not have been sufficiently informed by the 2015 consultation to match the views of trade union members in 2022.
On this basis, the High court ruled that the Secretary of State’s approach was unlawful. The High Court didn’t comment on ground 2, having based its decision on ground 1.
This means that from the 10 August, the law will revert to the way it was before 21 July 2022, and employment businesses will no longer be able to supply agency workers to cover striking workers.
Strikes (minimum level service) Bill
The new bill received Royal Assent on 20th July 2023, and means that employers engaged in important public services will be able to issue a works notice which will set out who is required to work throughout strikes.
Which sectors are covered?
There are sectors covered by the bill are passenger rail services, ambulance services and fire and rescue services.
Work notices
Under this new bill, where a union have given employers notice of strike, the employer will be able to serve a ‘works notice’ at least one week before the planned strike; the notice will provide who is required to work as well as the type of work they will need to carry out, regardless of their union affiliation.
However, the employer won’t be able to list more people than necessary to work, and will have to take into account the union’s views before serving the notice, in an attempt to achieve collaboration between the union and employer.
Implications
Trade unions receive immunity from legal civil action for lawful strikes. However, the new bill means that unions will lose immunity if they fail to take reasonable steps to regulate their members’ compliance with work notices. This means an employer can discipline a non-complying employee and potentially sue the trade union for any resulting losses.
Also, as it stands, if an employer sacks an employee for participating in a strike during the ’12 week protected period’, their dismissal will automatically be unfair. Under this new bill, an employee named in a work notice will lose the right to automatic unfair dismissal if they strike in breach of it.
The Government is launching a public consultation to decide what reasonable steps a trade union should take to ensure their members comply with the work notice.
Image used under CC courtesy of Joe Gratza.