Yesterday in R (on the application of ASLEF and ors) v Secretary of State for Business and Trade the High Court quashed the government’s controversial legislation which repealed the prohibition placed upon employment agencies from supplying temporary workers to businesses in order to backfill labour shortages caused by employees participating in industrial action.
The proceedings were brought by a group of 13 trade unions who instigated a judicial review challenge to the government’s revocation in 2022 of Reg 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (‘Conduct Regulations’). This longstanding piece of legislation had made it a criminal offence for an employment agency to supply temporary workers to cover the work of those participating in official industrial action. The challenge was brought on two grounds. First, that the government had failed to comply with its obligations to undertake consultation before amending the Conduct Regulations and, second, that this was a breach of the government’s obligations under Article 11 of the European Convention on Human Rights (ECHR) to prevent unlawful interference with the rights of trade unions and their members.
The High Court found that there had been a breach of the obligation to consult in relation to the amendments to the Conduct Regulations. Perhaps unsurprisingly. It rejected assertions that the government ought to be able to rely upon consultation undertaken in 2015 in relation to a proposal to repeal Regulation 7 which had formed part of the Conservative’s manifesto in 2015. The Court found that it could not and, in any event, that the Secretary of State had not given the required consideration to the outcome of that consultation in making the decision. On that basis the judicial review succeeded.
In reaching its decision the High Court went into some detail regarding the timeline of both the initial consultation in 2015 and the decision in 2022 to repeal Regulation 7. In doing so, it noted that the initial consultation had indicated that the majority of those who responded did not believe that repealing Regulation 7 would materially reduce the impact of industrial action. It appeared to be on this basis that the government had not proceeded with the repeal of Regulation 7 as one of the changes implemented by the Trade Union Act 2016.
This is a particularly pertinent point now that the prohibition has been quashed and given the almost unprecedented levels of industrial action being taken across both the public and private sector. No doubt there will be much wailing and gnashing of teeth from the government and politically-driven suggestions that the courts are making it harder for it to bring to an end the ongoing pay disputes in the rail, healthcare and education sectors. Some cynics may even say it is a decision which government ministers may privately welcome, representing the quashing of a relatively ineffective piece of legislation and allowing them to pass the blame on the government’s inability to resolve these industrial disputes onto the courts. We say “ineffective” because in our experience, there has actually been very little use by employers of agency workers to backfill shortages called by industrial action. It may have been welcomed as an option when considering contingencies in the event of industrial action, but at a time when there are limited pools of resources when it comes to temporary labour, particularly for any type of skilled work, shipping in large numbers of temporary staff has not been a realistic solution. The agencies do not have those workers available on their books and the employment relations risk with regard to those the employer already has is very substantial.
It remains to be seen whether the government will appeal the High Court’s decision. We would expect it to, if for no other reason than wanting to be seen as not accepting the court’s findings. With what degree of conviction is a separate story. What is certain, however, is that as inflation remains stubbornly high we are likely to be in for an extended period of industrial unrest. Trade unions will continue to submit double digit pay claims which employers are unable to meet and threats of industrial action will likely remain the norm for those who have union recognition agreements in place