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As strikes continue to dominate the headlines, the High Court has ruled that employers can no longer use agency staff to fill in for striking workers.

The decision quashes a legal change introduced last year by then business secretary, Kwasi Kwarteng, which allowed businesses to bring in temporary workers during industrial action.

The bar, which had been in place since 1976, was lifted on 21 July 2022 when the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force.

However, this was quickly challenged by thirteen trade unions – which represent around three million workers – arguing that the government had breached s12(2) of the Employment Agencies Act 1973 by failing to consult them before introducing the changes.

The government disputed these claims and argued that Mr Kwarteng had upheld his statutory duty to consult, referencing a public consultation held in 2015 on the possibility of lifting the statutory bar, and that it was unlikely to result in a different outcome if repeated.

While the government did run such a consultation in 2015, the proposals for repeal were dropped following criticism from the Regulatory Policy Committee, which deemed the impact assessment “not fit for purpose”.

In addition, the High Court maintained that the statutory duty could not be met by the previous consultation, with Judge Thomas Linden expressing that Mr Kwarteng had made the decision based on “precious little information”.

He added: “This was not an all or nothing decision: there could have been a shortened consultation, and/or one with a more limited group of consultees. There is no sign that this option was even considered.”

Judge Linden also noted the lack of an impact assessment and a dismissal of evidence, which suggested the move would have “negligible beneficial impact in the short term and, quite possibly, an adverse impact on the government’s ability to settle ongoing industrial disputes.”

The reversal will come into effect from 10th August 2023, with the government choosing not to appeal the High Court’s decision.

For advice or guidance on any employment law related matter, contact Nick Smith at nsmith@mincoffs.co.uk

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