KNOWLEDGE

Significant developments in relation to the law on strikes

Morton Fraser Partner Innes Clark
Author
Innes Clark
Partner
PUBLISHED:
24 July 2023
Audience:
Business
category:
Blog

Regulations that came into force last year allowing employers to use agency workers to cover the duties of striking workers have been quashed while a controversial new Bill requiring minimum service levels during strikes has become law.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022

In July last year regulations came into force allowing employers to utilise agency workers to undertake the duties of striking workers.  Prior to that regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevented employment businesses from supplying temporary workers in those circumstances.  The UK Government consulted on the possible revocation of regulation 7 in 2015, with the majority of responses not favouring such a change and the Government of the day deciding not to proceed with it.  However, in 2022 it was decided without further consultation that regulation 7 would be revoked, and this was facilitated via the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 ("the 2022 Regulations").

Thirteen trade unions then challenged the 2022 Regulations by way of a judicial review.  This was brought on the basis of a failure to comply with a statutory duty to consult before making the 2022 Regulations, and a breach of duty under Article 11 of the European Convention on Human Rights ("ECHR") to prevent unlawful interference with the rights of trade unions and their members.

When the matter came before the High Court the challenge by the unions was successful.  The Court found that the UK Government had failed to comply with its duty to consult, that it could not rely on the earlier 2015 consultation, and it had, in fact, not done so in any event.  The judicial review being upheld on that ground, the Court did not go on to address the Article 11 ECHR ground. Accordingly, the 2022 Regulations have been quashed.  With effect from 10 August supplying temporary workers to replace striking workers will once again become unlawful. 

Strikes (Minimum Service Levels) Act

After a difficult journey through Parliament which saw the House of Lords suggesting a number of amendments to the Bill, the Strikes (Minimum Service Levels) Act is now in force.  Broadly speaking the Act ensures minimum service levels are maintained during strikes in specified services.  This includes the emergency services, border security, education, rail and the nuclear sector.  Minimum services will be set following public consultation and approval by both Houses of Parliament. 

Once the minimum service levels are in force, if notice of strike action is given by a relevant trade union the affected employer can issue a "work notice" specifying the members of the workforce required to maintain safe levels of service.  The employer must consult with and take into account the views of the relevant unions on the number of workers and the required work to be specified in the work notice before it is issued.

It remains to be seen whether this Act will become a lasting part of UK employment law.  The Trade Union Congress has vowed to fight the new legislation "tooth and nail", claiming it damages workers' rights, while Labour has pledged to repeal it if it gets into Government. 

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