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High Court blocks move to alter strike laws: what it means for HR

Government efforts to allow businesses to draft in agency staff as strike cover ended last week (July 13, 2023) when the High Court quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. 

The government’s lack of consultation was cited as a significant driver for the ruling, with the High Court deeming the government’s decision to revoke the legislation preventing the use of agency workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”.

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For employers and HR professionals, the decision means that hiring agency staff to backfill for striking workers is once again illegal, with those found guilty of breaching the ruling facing large fines and legal action. 

In the absence of this mechanism to diminish the disruptive effect of strikes, the ruling serves as a reminder of the many benefits to businesses of avoiding deadlock and miscommunication by maintaining an open and honest workplace forum where the views of employers and employees can be regularly exchanged directly, constructively, and information about a business’s performance, challenges, barriers and successes can be shared and discussed. 

While there are no magic formula or quick fixes to avoid industrial action in some cases, creating and maintaining good communication and cascading company information certainly helps. 

HR departments are key to the successful implementation of these processes and for overseeing regular, informed updates across a business. 

Strikes are, sadly, in some cases unavoidable; we’ve certainly endured many recently.

However, ensuring employees are better informed about the impacts on business of, for example, leaving the EU, difficulties with supply chains, the pandemic, spiralling interest rates or rising energy in input costs, ensures an appreciation of potential challenges.

Anecdotal evidence suggests while important pay is not the top priority for many employees, continuing focus on good employee relations and maintaining a good collaborative culture create an environment where deadlocks and aggressive strike action may avoided. 

We’ve seen that clear career pathways and detailed policies explaining how wage rises and bonuses are determined by company performance have created a better workplace culture which leaves staff feeling more involved in the business and less likely to seek industrial action or the need for a third party to intervene on their behalf. 

The regulations were intended to be part of a range of steps the government is taking to reduce the disruptive effect of strikes.

The High Court’s decision may well be appealed but for the moment, the use of agency workers is not an option for businesses to redress the disruption to operational requirements caused by strikes.

It’s a victory for organised labour and for workers rights but at a cost to businesses, the public and consumers.

Jean-Pierre van Zyl, partner and head of employment at Square One Law