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Industrial action: Use of agency workers

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By Hilary Larter & Ceri Fuller

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Published 10 January 2023

Overview

THE FACTS

The High Court has granted permission for a judicial review of the regulations that permit the supply of agency workers during strike action to replace striking workers (see our alert here). Three sets of legal proceedings were launched in September 2022 in response to the legislation which came into force in July 2022 which permits the use of agency workers to fill in for striking employees. One challenge, brought by 11 trade unions, is being co-ordinated by the Trades Union Congress (TUC), and separate challenges have also been brought by Unison and NASUWT. All have been given permission to proceed.

The unions will argue that the regulations are unlawful on two grounds. Firstly, that the Secretary of State for Business, Energy and Industrial Strategy (BEIS) failed to consult the unions, and secondly, the unions will argue that the regulations violate fundamental trade union rights that are protected under the European Convention on Human Rights (ECHR).

What does this mean for employers?

We understand the full hearing in this case will happen this Spring. In the meantime, employers can still lawfully use agency workers to cover the work of those on strike. Trade unions continue to seek to persuade employment businesses not to provide such strike cover.

This law change has a long history, with the government stating it intended to repeal this law as far back as 2017 before ultimately doing so last summer. We will update clients when there is more news on this case.

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