In July 2022, as part of its efforts to mitigate the impact of increasing industrial action across the country, the Government changed the law and lifted the decades-long ban on employment businesses supplying temporary workers to cover for striking workers. A group of trade unions challenged the revocation of this ban and succeeded. From 10 August 2023, it will once more be a criminal offence for employment businesses to supply temporary workers to fill the roles of workers taking official strike action.
Under the Regulations which govern the conduct of the private recruitment industry, specifically Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, it was a criminal offence for a recruitment services company operating as an employment business to supply temporary workers to cover for striking workers. However, in the summer of 2022, the Government introduced Regulations which revoked Regulation 7, meaning that, from 21 July 2022, providing cover for striking workers was permitted.
Several trade unions challenged the repeal of Regulation 7 by bringing judicial review proceedings and proceedings under the European Convention on Human Rights. They claimed that the Government's decision to make the Regulations revoking the ban was unlawful because the then Secretary of State for Business, Energy and Industrial Strategy had:
- failed to comply with his duty under section 12(2) of the Employment Agencies Act 1973 to consult with representative bodies before making the Regulations; and
- breached the duty under Article 11 of the European Convention on Human Rights to prevent unlawful interference with the rights of trade unions and their members by making the Regulations.
Having agreed with the unions' first argument and, as a result, deciding not to express a view on their second argument, on 13 July 2023, the High Court concluded that the appropriate outcome would be to quash the Regulations revoking the ban. From 10 August 2023, it will again be a criminal offence for an employment business to introduce or supply a work-seeker to perform the duties normally performed by:
- a worker who is taking part in an official strike or other official industrial action ("the first worker"); or
- any other worker employed by the hirer (the client of the employment business) and who is assigned by the hirer to perform the duties normally performed by the first worker, unless, in either case, the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in an official strike or other official industrial action.
The Government decided not to appeal the High Court's decision. It could now carry out a compliant consultation on repealing the ban. However, some might regard the High Court's decision as a convenient outcome for the Government because it means that it can cast blame on the courts for hindering its efforts to bring an end to the ongoing public sector pay disputes and repeated strike action in the healthcare, education and rail sectors.
Some commentators regard the re-introduction of this prohibition as having the potential to increase significantly the disruptive effect of industrial action. Our view is that the decision is unlikely to impact most recruitment services companies, some of which have a moral objection to providing cover for striking workers or consider it too risky for temporary workers to be sent over picket lines. Often it can simply be too difficult to source temporary workers with the relevant skills who are willing to work for a relatively short period in a potentially hostile environment. Other times recruitment service companies' clients do not want to run the employment relations risk, or sometimes the health and safety risk, by engaging replacement workers. Nevertheless, recruitment services companies should be alert to requests from clients that are, or may be, requests to fill the roles of striking workers, or workers who have been redeployed to cover the work of striking workers, because, unless it can raise the defence that it did not know, and had no reasonable grounds for knowing, that official strike action was in progress, from 10 August 2023, it will be unlawful for an employment business to fill such roles. Breach of this prohibition is a criminal offence punishable by a fine.