The government has launched a consultation (which closes on 13 January) on repealing regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which prevents employment businesses from supplying agency workers to cover striking workers.
The follows the High Court's relatively recent decision in R (ASLEF and others) v Secretary of State for Business and Trade to uphold a judicial review challenge brought by 13 trade unions in relation to the revocation of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 by virtue of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. Regulation 7 prohibited employment businesses from supplying temporary workers to cover the work of those taking part in official industrial action until 21 July 2022, when it was revoked.
The High Court's quashing order provided that, with effect from 10 August 2023, the law would revert to the position before 21 July 2022 and so employment businesses will no longer be able to supply temporary workers to employers to cover those involved in industrial action.
The government only had two options for pursuing its plan to repeal regulation 7 following the High Court's decision. The first of these was to appeal the judgment and the second was to consult as required and place new regulations before Parliament. It has taken the latter approach.
The repeal of regulation 7 would enable employment businesses to supply agency workers to cover strikes in any sector. The government has described this as a "permissive" measure in that employment businesses would be permitted, but not required, to supply agency workers to cover strikes, and agency workers would be free to turn down any assignment offered to them. It would not prevent trade unions from calling strikes or affect the protections which are currently available to striking workers.
The consultation explains that the government believes it is only right to regulate and restrict the freedom of businesses to operate where necessary and proportionate. It expresses the view that regulation 7 is a significant interference in the operations of private companies and other employers which is unnecessary and disproportionate. It also believes that it prevents work-seekers being offered certain assignments that they may otherwise wish to take.
