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Ruling against using agency workers in strikes will not be appealed by government

The government will not appeal the High Court decision that using agency workers to cover for workers on strike is unlawful.

In response to rail strikes across the UK, in July 2022 the government initiated legislation to enable agency workers to carry out the work of striking employees.

However, unions including Aslef, GMB, Unite and Usdaw argued this change was unlawful, and brought a successful claim against the business secretary Grant Shapps. 

The government has decided not to appeal this decision, meaning Article 7 will be back in effect from 10 August and agency workers cannot be used to cover striking staff.

More about industrial action:

A year of strikes: what has changed?

Royal Mail settles dispute after 14 months of strikes

How strike laws and restrictions differ across Europe

Tim Sharp, senior employment rights policy officer at the Trades Union Congress (TUC), said the legislation change had been unhelpful.

He said: “Bringing in agency staff to deliver important services in place of strikers risks endangering public safety, worsening disputes and poisoning industrial relations.

“Since the changes came into force, we have seen no evidence of improved industrial relations. Rather, workers and agency employers have been placed in the middle of difficult and volatile situations.”

The chief executive of the Recruitment and Employment Confederation (REC), Neil Carberry, said the government would need to hold a full review before attempting any further changes to strike law.

Speaking to HR magazine, he said: “We hope that the government decides to let this matter rest now. 

“They may choose to table replacement regulations, but these cannot be rushed considering the judgement of the High Court. A full consultation would be needed. 

“If the government goes down this route, the REC will stand with labour relations experts across the country in arguing that the change will stir up problems and provide no solutions. We would be better advised to channel energy and efforts into resolving current conflicts and producing an industrial strategy for the UK that tackles labour market shortages.”

The news follows the Strikes (Minimum Service Levels) Act receiving Royal Assent earlier this month (20 July).

The bill mandates a minimum level of service during industrial action from public services, with unions being sued if they fail to comply. It has received widespread criticism, including from the United Nations (UN) workers’ rights watchdog the International Labour Organisation (ILO).  

The ILO made a statement condemning the legislation as interfering with the right to strike.

It issued a rare instruction for ministers to “seek technical assistance” from ILO staff and report back on progress in September, the first intervention it has made against the UK since 1995.