High Court backs unions challenging ‘strike-breaking’ legislation

Judge rules business department did not consult properly on Kwarteng-led changes to aid the use of agency workers
The Royal Courts of Justice in London. Photo: R/DV/RS/Flickr/CC BY 2.0

By Jim Dunton

14 Jul 2023

A High Court judge has quashed legislative changes introduced last year by the Department for Business, Energy and Industrial Strategy that allow employers to draft in agency workers to cover for regular staff who are on strike.

Civil service unions the PCS and FDA were part of the challenge brought against the regulations, which were laid before parliament by then-business secretary Kwasi Kwarteng in June 2022 and which took effect at the height of industrial action on the railways.

In a ruling handed down on Thursday,  Justice Linden said the government’s failure to consult unions on the measures – as required by the Employment Agencies Act 1972 – was “so unfair as to be unlawful and, indeed, irrational”.

PCS general secretary Mark Serwotka said the case demonstrated the extent to which the government was prepared to ignore the law to pursue a “war” against workers.

“It was obvious from the outset that the government had failed to fulfil its obligations on consultation,” he said.

“Instead of accepting that and following a proper process, they chose to double down and waste taxpayers’ money on defending the indefensible.”

Serwotka said PCS had won eight High Court judicial reviews examining the legality of government decisions over the past decade. Arguably its most high-profile win was the union’s consultation-focused challenge to the 2015 Civil Service Compensation Scheme, which resulted in a government defeat in 2017.

FDA assistant general secretary Amy Leversidge said the decision was a “victory for basic fairness”, and for the trade-union movement.

“The government tried to railroad through a plainly unjust and unfair measure in an attempt to undermine the fundamental right to take industrial action,” she said.

“The judgement found that ministers ignored advice that this served no real benefit for the public and was ultimately unworkable. These proposals should never have seen the light of day.”

Leversidge said the government’s recent approach to resolving workplace disputes appeared to rely on introducing “ever-more draconian measures” rather than addressing issues directly.

A spokesperson for the Department for Business and Trade, which took on a raft of BEIS responsibilities following February’s machinery-of-government changes, said the organisation was considering its next steps in the wake of the judgment.

"We are disappointed with the High Court's decision as we believed the decision to repeal the ban on agency workers covering strikes complied with our legal obligations,” they said.

“The ability to strike is important, but we maintain there needs to be a reasonable balance between this and the rights of businesses and the public.”

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