Strike-Breaking Ruled Unlawful, Unfair and Irrational by High Court

The High Court has today ruled that it is unlawful for employers to utilise agency workers to ‘fill in’ for striking workers during industrial action. Mr Justice Linden held that to allow agency workers to disrupt such industrial action was unfair, unlawful and irrational. The policy was originally implemented by former Chancellor of the Exchequer Kwasi Kwarteng.

The legal challenge came following The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, these Regulations repealed earlier legislation which made it unlawful for strikes to be disrupted in this way. The Government in introducing this repeal stated that it was to tackle:

“militant trade union action threatening to bring vital public services to a standstill […] For too long unions have been able to hold the country to ransom with the threat of industrial action but this vital reform means any future strikes will cause less disruption and allow hardworking people to continue with their day to day lives.”

Prior to this, bringing in agency staff to replace workers on strike or taking part in industrial action had been illegal since 1976.

The union UNISON, along with NASUWT and the TUC brought a legal challenge in May of this year arguing that this repeal represented a dangerous move and was likely a breach of Article 11 of the ECHR. Represented by barristers from Old Square Chambers, UNISON argued that the repeal was a fragrant violation of fundamental trade union rights, with general secretary Christina McAnea saying:

“Breaking strikes with unqualified and ill-experienced agency workers doesn’t address the root causes of why people are striking, and it only puts the public in danger.”

In ruling against the government, Mr Justice Linden held that Kwasi Kwarteng, then Business Secretary, failed to consult unions as required by the Employment Agencies Act 1973. He ruled that even if the Secretary of State had considered the responses to the 2015 Consultation before the decision on 13th June 2022, it would have been unfair and inconsistent with the aims of section 12(2), particularly pertaining to ensuring informed decision making.

The Secretary of State’s defence relied heavily on the established “very limited” duty to consult as outlined in section 12(2). The argument submitted stated that, “Provided that the consultation is conducted before any regulations are introduced…the duty to consult is satisfied.” It was argued that the Secretary of State had no formal responsibility to consult the claimants about the 2022 Impact Assessment.

UNISON general secretary Christina McAnea commented on the favourable ruling, saying:

“No one ever wants to go on strike. But when that difficult decision has been taken, employers should be throwing everything but the kitchen sink at ending a dispute, not inflaming tensions by undermining staff.

This futile piece of legislation has barely spent a year on the statute book. Parachuting untrained agency workers into the midst of industrial hostilities isn’t fair or safe for them, the public or the staff out on strike.

This is embarrassing for ministers. Not only did Kwasi Kwarteng help trash the economy as chancellor, now his bulldozer attitude when business secretary has made the government look extremely foolish…he ignored the advice of everyone around him, showing a total disregard for working people and their rights.

To spare themselves future shame, ministers should ditch their ill-advised strikes bill and focus instead on working with unions to solve the country’s many problems.”

TUC General Secretary Paul Nowak remarked:

“This is a badge of shame for the Tories, who have been found guilty of breaching the law. Bringing in less qualified agency staff to deliver important services risks endangering public safety, worsening disputes and poisoning industrial relations.”

The only government response at the time of writing reads:

“We are disappointed with the High Court’s decision as we believed the decision to repeal the ban on agency workers covering strikes complied with our legal obligations. The ability to strike is important but we maintain there needs to be a reasonable balance between this and the rights of businesses and the public. We will consider the judgement and our next steps carefully.”

It is unclear from this whether the government plans to appeal the ruling. If they choose to do so, the case will be taken to the Court of Appeal and possibly the Supreme Court – Two appellate courts which in recent years have not been favourable to government regulations, including a recent ruling by the Court of Appeal which held that Deportation of Asylum Seekers to Rwanda was Illegal. It is likely the government will be fighting an uphill struggle to convince the courts to reverse the ruling of the High Court.

This follows a number of recent attacks by the government on trade unions and strike rights, including the Strikes (Minimum Service Levels) Bill, which allows ministers to dictate the level of service that must be maintained within key sectors while industrial action takes place, essentially allowing them to minimise disruption to themselves while shirking their own responsibility and neglecting the striking workers. Yet the recent defeats in the courts go a long way in showing the government that these liberties will not be given up freely.

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