Strikes and Agency Workers

The Government revoked legislation that prevented workers on strike from being replaced by agency workers without consultation. This has been ruled unlawful by the High Court in (on the application of ASLEF and others) v Secretary of State for Business and Trade.

Their Lordships ruled that the Secretary of State had:

• Failed to comply with their statutory duty to consult before making the Regulations (Ground 1); and
• That the Secretary of State breached their duty, under Article 11 of the European Convention on Human Rights, to prevent unlawful interference with the rights of trade unions and their members (Ground 2).

The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers instead of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned.” The Secretary of State could not rely upon consultation, which had occurred seven years earlier on the same point (and was found not to have done so in any event).

The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2. 

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