Out-Law News 1 min. read
28 Jul 2023, 3:31 pm
British employers facing industrial action have been urged to review their contingency plans after a High Court decision struck down rules allowing agency staff to perform the roles of striking workers.
Employment law expert Emma Noble of Pinsent Masons said: “The repeal of the prohibition against using agency workers to cover for striking workers was a welcome relief to employers in those limited sectors where they were able to use agency workers as it has allowed them, often when used in conjunction with other measures such as the outsourcing of particular services or the direct hire of temporary labour, to continue to maintain operations.”
Despite this, Noble said the ruling was likely to impact only a small number of employers, because the nature of the work done by those on strike is not easily covered by agency workers. “Employers in the rail and universities sectors, for example, have not been able to use agency workers given the skills and qualifications required for the roles of those on strike.”
The government introduced new regulations last year amid a wave of disputes over pay and conditions. The reforms made it easier for businesses to use agency staff during industrial action. But in a legal challenge brought by 13 trade unions, the government was accused of acting unlawfully. The unions claimed the changes had been made without proper consultation.
The High Court ruling (51 pages / 519KB PDF), handed down by Mr Justice Linden last week, means that it is once again a criminal offence for agency businesses to supply agency workers to cover for those on strike, or to backfill work being covered by employers’ own staff where workers are on strike. Noble said: “Agency businesses will be live to this and will immediately want to cease providing agency workers to companies facing industrial action.”
She added: “Employers using agency workers to cover striking workers will also need to change their practices to avoid any suggestion of a criminal offence of aiding and abetting, where they continue to use agency workers in these circumstances. Employers should therefore immediately review their contingency plans and make use of alternative methods to ensure operations continue.”