Tory government suffers major defeat as High Court rules its “strike-breaking” agency worker regulations unlawful

• “Ministers should spare themselves further embarrassment” by ditching changes to agency worker regs and junking the anti-strike bill, the union body says 

In a major defeat for the Conservative government, the High Court has today (Thursday) ruled that its agency worker regulations are unlawful, after a successful legal challenge by trade unions – coordinated by the TUC. 

The “strike-breaking” regulations were brought in last summer and allow agencies to supply employers with workers to fill in for those on strike.   

The High Court ruled that the then Secretary of State for Business, Energy and Industrial Strategy, Kwasi Kwarteng, failed to consult unions, as required by the Employment Agencies Act 1973 – quashing the 2022 changes. 

Eleven trade unions, coordinated by the TUC and represented by Thompsons Solicitors LLP, brought legal proceedings against the government’s changes to agency worker regulations in a bid to protect the right to strike. 

The unions – ASLEF, BFAWU, FDA, GMB, NEU, NUJ, POA, PCS, RMT, Unite and Usdaw – come from a wide range of sectors and represent millions of workers in the UK.  

Unison and NASUWT also brought separate legal challenges against the laws. 

The TUC says the ruling is a “badge of shame” for the Conservative government – and a “major blow" to “ministers’ attempts to undermine the right to strike”. 

In addition to these agency worker regulations brought in last summer, ministers are currently rushing through the Strikes (Minimum Service Levels) Bill, which is currently making its way through parliament.  

This could lead to workers being forced to work even when they have democratically voted to strike, and workers facing the sack if they refuse to comply. 

Damning assessment 

The Court was damning in its assessment of ministers’ failure to consult – and in particular, the conduct of the former Secretary of State for Business, Kwasi Kwarteng. 

The judgment says “the Secretary of State’s approach was contrary to section 12 (2) of the 1973 Act, so unfair as to be unlawful and, indeed, irrational.” 

The judgment goes onto say “the approach of Mr Kwarteng was to commit to the revocation of regulation 7 at a time when the advice to him was that it would be of negligible short-term benefit and probably be counterproductive.” 

Heavy criticism 

The change in agency worker regulations was heavily criticised by unions, agency employers, and parliamentarians. 

The TUC has warned these new laws could worsen industrial disputes, undermine the fundamental right to strike and endanger public safety if agency staff are required to fill safety critical roles but haven’t been fully trained.  

The Recruitment and Employment Confederation (REC), which represents suppliers of agency workers, has previously described the proposals as “unworkable”. 

The Lords Committee charged with scrutinising the legislation said “the lack of robust evidence and the expected limited net benefit raise questions as to the practical effectiveness and benefit” of the new rules.   

TUC General Secretary Paul Nowak said:  

“This defeat is a badge of shame for the Conservatives, who have been found guilty of breaching the law. 

“Bringing in less-qualified agency staff to deliver important services risks endangering public safety, worsening disputes and poisoning industrial relations.   

 “The government railroaded through this law change despite widespread opposition from agency employers and unions. The courts even found ministers ignored evidence that the measure would be counterproductive. 

“This is the same reckless approach behind the anti-strike bill, which has faced a barrage of criticism from employers, rights groups and international bodies, and which has been amended by the House of Lords on three separate occasions during parliamentary ping-pong.  

“Ministers should spare themselves further embarrassment.  

“These cynical strike-breaking agency worker laws must be scrapped once and for all – and the draconian anti-strike bill must be junked for good too.” 

Richard Arthur, head of trade union law, Thompson solicitors: “This is a significant victory for the entire trade union movement and preserves a vital safeguard in ensuring the right to participate in industrial action is effective.  

“The judgment makes clear that the then Secretary of State had a staggering disregard to his legal obligations when introducing legislation that enabled employers to engage agency workers to cover the duties of striking workers.  

“He was driven solely by a political ideology to meet a self-imposed deadline to implement the regulations in the face of mounting industrial action across the country.  

“He took this decision notwithstanding advice he received that it was likely to be counter-productive to the problem he wanted to address and was being rushed through without any regard being taken to the duty to consult which was a fundamental legal requirement.  

“This is bad law-making made on the hoof and the Court has rightly held the Government to account.”