Unions begin High Court battle over government’s “strike-breaking” agency worker regulations

Judicial review hearing of “anti-worker” regulations which “undermine the right to strike” kicks off

5 May 2023| News

The High Court legal challenge brought by trade unions to protect the right to strike began on Wednesday – with the hearing concluding on Thursday, and the result expected in a few weeks’ time.

The challenge has been brought by eleven trade unions, coordinated by the TUC and represented by Thompsons Solicitors LLP.

The unions – Aslef, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw – have taken the case against the government’s changes to the law which allow agencies to supply employers with workers to fill in for those on strike.

The challenge was heard Wednesday and Thursday, along with separate legal cases launched by TUC-affiliated unions Unison and NASUWT against the government’s change to the agency worker regulations.

The unions come from a wide range of sectors and represent millions of workers in the UK.

The TUC says the hearing shows unions will fight government attacks on the right to strike all the way – including through the courts.

In addition to the agency worker regulations brought in last summer, ministers are pushing through the Strikes (Minimum Service Levels) Bill, which is currently making its way through parliament.

Unlawful changes to regulations

The unions argue that the agency worker regulations are unlawful because:

  • The then Secretary of State for business failed to consult unions, as required by the Employment Agencies Act 1973.
  • They violate fundamental trade union rights protected by Article 11 of the European Convention on Human Rights.

The changes to the regulations overturn a decades-long ban on agency workers replacing strikers – and have been heavily criticised by unions, agency employers, and parliamentarians.

The TUC has warned the changes to the law will worsen industrial disputes, undermine the fundamental right to strike and could endanger public safety if agency staff are required to fill safety critical roles but haven’t been fully trained.

The Recruitment and Employment Confederation (REC), which represents suppliers of agency workers, described the proposals as “unworkable”.

The Lords Committee charged with scrutinising the legislation said “the lack of robust evidence and the expected limited net benefit raise questions as to the practical effectiveness and benefit” of the new rules.

TUC General Secretary Paul Nowak said:

“This government is brazenly attacking the right to strike. First by cynically changing the law to allow employers to hire agency workers to fill in for striking workers, and now with the draconian anti-strikes Bill.

Bringing in less qualified agency staff to deliver important services could endanger public safety, worsen disputes and poison industrial relations. And these strike-breaking agency regulations are likely illegal. Ministers failed to consult with unions, as the law requires, and restricting the freedom to strike is a breach of international law.

That’s why unions are coming together to fight these attacks all the way – including in the courts.”

On the Strikes Bill and further attacks on the right to strike, the TUC General Secretary added:

“With inflation running at more than 10%, ministers are falling over themselves to find new ways to make it harder for working people to bargain for better pay and conditions. It’s time to ditch the draconian anti-strikes Bill and protect the right to strike. Working people need stronger legal protections and more power in the workplace to defend their living standards – not less.”