Unions court win means agency workers can no longer be used to break strike action 

A prohibition had been in place since 1976 – surviving even Margaret Thatcher’s onslaught on trade union rights. 

But in changing the law ministers cut corners in an approach the judge, Mr Justice Linden said was “so unfair as to be unlawful and, indeed, irrational”. 

The TUC is now calling on ministers to commit to retaining the longstanding bar on agency strikebreakers – and also to bin the Strikes Bill currently going through Parliament that is also intended to undermine industrial action. 

Counterproductive

Allowing agencies to supply replacement staff for strikers was intended to tilt the balance of power in the workplace further away from workers by undermining action to defend their pay and conditions. 

The TUC pointed out that this is counterproductive. “Bussing in” workers in this way creates unnecessary tensions between employers and their employees, making it more difficult to resolve disputes.  

The use of inexperienced agency workers may also give rise to serious health and safety concerns, within the workplace and for the wider public. Agency workers recruited at short notice are unlikely to have received full health and safety training. This could lead to accidents or injuries. 

It is notable that the Recruitment and Employment Confederation, which speaks for agencies, opposed the “wrong-headed” changes. 

Cutting corners

In 2015 the government consulted on lifting the ban on strikebreaking agency workers – but decided not to proceed after the vast majority of responses said the plans were flawed. 

In 2022 the measures were dusted off and in rather characteristic fashion the government decided to cut corners to rush them in. 

The 1973 Employment Agencies Act requires changes consultation to be undertaken before regulations are made.  

Instead of doing this, then-Business Secretary Kwasi Kwarteng decided to rely on the 2015 consultation – which the court judgment found he hadn’t even properly analysed. 

So the TUC challenged the changes with a coalition of eleven unions (ASLEF, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw), while UNISON and NASUWT also brought cases.  

We successfully argued that the regulations from last summer breached the 1973 Employment Agencies Act.  

The Court found that the approach of Mr Kwarteng was to commit to the revocation of the previous rules at a time when the advice to him was that it would be of “negligible short-term benefit and probably be counterproductive…” 

Conclusion 

The lesson from this court case is that knee-jerk anti-union laws don’t work – and unions will challenge them at every turn. 

So, ministers should commit to retaining the ban on strikebreaking agency workers. 

They should also ditch the Strikes Bill they are trying to rush through Parliament. Just as with the agency worker changes, this also seeks to undermine effective strike action.  

It would force workers to cross picket lines to maintain minimum service levels set by ministers. 

And just as with the agency rules, the legislation is opposed by many employers, as well as a whole host of other organisations. 

The way to resolve disputes is discussion and negotiation. You can’t legislate away worker dissatisfaction. 

As a starting point ministers should consider the demands of the International Labour Organisation’s top supervisory body which last month urged the government to step up consultation with unions and employers.