In the past businesses were generally not permitted to use agency workers to fill in for workers who had chosen to go on strike.
In July this year the government changed the legal position on this issue. This move came in response to strikes organised by the rail unions. However, the change is applicable to all sectors. Employers remain bound by health and safety obligations and must ensure that agency workers are only employed if they have the necessary skills to do the job.
It was commented at the time that this change was likely to have little practical impact as the UK is facing a shortage of temporary skilled workers who would be able to take on such positions.
A primary school in Romford was believed to be the first workplace to make use of these new laws in October of this year. Interestingly, the agency that was used claimed that they were misinformed as to why the temporary staff were required and were told it was to cover sickness absence. Once it became clear that the staff were being used to cover strike action the agency refused to supply any more staff. The school denied these claims.
Today, the High Court has granted permission for these regulations to be subject to a judicial review. 11 unions have brought this challenge to argue that the regulations are unlawful and undermine the right to strike which is protected by the European Convention on Human Rights. The unions also argue that the regulations are unlawful as they were not consulted about the regulations by the Secretary of State, as required by statute.
A hearing on this issue will be held in March of next year.
This change in the law has always been controversial. Agencies report concerns that their workers will face harassment and tough working conditions if sent to cross picket lines. Employers also run the risk of increasing tensions and putting negotiations at risk if they take advantage of the regulations.
It has always been lawful to use existing staff to cover the work of those on strike and employers may consider this to be a safer option.
The position as it stands is that these regulations are still in place. We will continue to provide updates on the judicial review case as it develops.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.