The repeal of the ban on using agency workers to backfill those on strike has been ruled unlawful - read all about it...
Eversheds Sutherland Employment, Labor and Pensions Updates
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Today’s judgment
The repeal of the ban on using agency workers to backfill those on strike has been ruled unlawful.
Background
In 2022, the Government repealed restrictions which prevented temporary agency workers backfilling employees who take part in industrial action. In response, a coordinated legal response from trade unions resulted in a judicial review hearing in May this year. The unions argued that the repeal was unlawful because it was procedurally flawed (including a failure to consult as required by the regulations) and interfered with trade union rights under Article 11 of the European Convention on Human Rights (ECHR).
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Implications
In today’s judgment, the Court has decided to quash the legislation which implemented the repeal because of the Government’s failure to consult (it did not decide the ECHR appeal ground).
Importantly, the order to quash the legislation (a quashing order is an order of the court that revokes the original action or decision being challenged and makes it invalid) is effective from 10 August 2023. Therefore, the prohibition on using agency workers will once more apply on 10 August 2023 onwards.
Employers using agency workers to backfill striking workers, or workers moved internally to backfill striking workers, either now or going forwards should immediately address their use and, as a minimum, end such arrangements before 10 August 2023.
The Government has seven days from today to appeal the judgment and we await to hear their decision. Alternatively, it may decide to address the court’s criticisms by launching a new public consultation on repealing the ban. This would take time to complete and may not result in support for the change (reflecting criticism of the repeal from some agencies). As such, there is no “instant fix” for the Government and employers should not expect to have the option of hiring agency workers to backfill strikers any time soon.