Background
Since 1976 it has been unlawful for an employment business to knowingly introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and more recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ("the 2003 Regulations") made this a criminal offence. A public consultation was carried out in 2015 on the proposal to revoke regulation 7, however the majority of responses did not favour the change and so the government did not go ahead. In June 2022 the government decided in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 of the 2003 Regulations would be revoked without further public consultation. On 21 July 2022 the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 ("the 2022 Regulations") came into force revoking regulation 7 and allowing agency workers to be supplied to cover striking workers.
Thirteen trade unions challenged the decision to make the 2022 Regulations, on two grounds:
- Ground 1 - First, they argued that the Secretary of State failed to comply with his statutory duty to consult before making the 2022 Regulations.
- Ground 2 - Second, it was contended that by making the 2022 Regulations, the Secretary of State breached his 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.
Both grounds were contested by the Secretary of State. In relation to ground 1, he relied on the consultation which took place in 2015. He also argued that relief should be refused because it is "highly likely" that the outcome would not have been substantially different had there been further consultation. In relation to ground 2 the Secretary of State denied that the revocation of regulation 7 of the 2003 Regulations amounted to an interference with the rights of trade unions and their members under Article 11 ECHR and he argued in any event any such interference was proportionate.
High Court
Unless there is a successful appeal the effect of the High Court decision is that the 2022 Regulations are quashed.
The High Court upheld the ground 1 challenge in relation to consultation. The purpose behind the consultation duty includes requiring the Secretary of State to take into account the views and evidence of those who are likely to be well informed, allowing Parliament to proceed on the basis that the case for the measure has been tested with interested parties in the sector and that their views and interests have been taken into consideration in fashioning the draft regulations which are laid before it. The High Court held that it could not have been intended that consultation would be satisfied providing it took place at some point before making the regulations, regardless of how long before the decision or any other issues as to the quality of the consultation relied on or as to its relevance at the time of the decision. The High Court suggested there could have been a shortened consultation, and/or one with a more limited group of consultees. The judgment about whether regulation 7 should be revoked was not informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned, not even the views of such bodies which were expressed in 2015.
The High Court preferred not to express a view on the Article 11 ECHR ground as it had already made its decision on the ground 1 consultation point.
Comment
Subject to any appeal the 2022 Regulations will be quashed with effect from 10 August 2023 and it will once again be unlawful to hire agency workers to cover striking workers. The government may choose to pursue this proposal again but would need to go through the proper consultation routes.
If you need any assistance with regard to the issues raised in this update please do not hesistate to get in touch.
