Employers can no longer use agency staff to fill in for striking workers during forthcoming industrial action
High Court rule that Government legislation introduced last year is unlawful.
The High Court has earlier today quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 that came into force on 21 July 2022. The Regulations permitted employment agencies to supply temporary workers to perform the duties normally performed by workers taking part in official industrial action.
Faced with the current wave of industrial action, NHS employers may have had to rely on agency staff to cover staff taking industrial action. The effect of this decision on the supply of the temporary workforce will create a further operational challenge for many NHS trusts.
The application to the High Court for a judicial review of the Government’s decision was brought by 13 trade unions. Until 21 July 2022, Reg 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibited employment agencies from supplying employers with temporary workers to perform the duties normally performed by workers taking part in official industrial action. The Government overturned that last year with its introduction of the Employment Businesses (Amendment) Regulations 2022, which came into force on 21 July 2022. This meant that agency workers could be used to fill in for striking workers.
The High Court has now ruled that this move was unlawful, upholding the unions’ argument that the Secretary of State failed to comply with his statutory duty under S.12(2) of the Employment Agencies Act 1973 to consult before making the 2022 Regulations.
The High Court has quashed the 2022 Amendment Regulations, and that will remain the position unless and until the decision of the High Court is itself overturned on appeal. Thus far, we have no word on whether leave to appeal to the Court of Appeal is being sought by HM Government.
It has now emerged that there is a grace period which was not set out in the original decision. This is essentially a stay of execution before the High Court’s judgement takes effect – until 10 August. That means that the Regulations continue in force in respect of any strike action planned between now and then.
We hope this is at least some reassurance in the run up to the impending industrial action.
If this decision causes particular difficulties for you or your organisation, please contact Kate Shute or Emlyn Williams in our healthcare employment team – or your usual Weightmans healthcare employment specialist.