EHRC responds to Government consultation on using agency staff to cover industrial action

Background

In 2022, the Government introduced regulation to abolish the rule against using agency staff to provide cover during industrial action. Under these regulations, employers were able to use temporary staff to lessen the impact of strikes. However, following a judicial review of the regulations, they were quashed by the High Court on the basis that the Government had failed to consult before legislating.

Government response

In response, the Government launched a second consultation on the same proposal towards the end of last year. The consultation closed on 16 January 2024.

What are the EHRC's concerns?

The EHRC has now published its response to the consultation. It has raised concerns that the consultation's Impact Assessment fails to assess the impact of the proposal on Article 11 (freedom of assembly and association). In the EHRC's view, the Government has failed to sufficiently explain why it is necessary to interfere with this right.

Expressing concern, the EHRC noted that repealing regulation 7, combined with recent changes to industrial action law, may have important legal implications which should be more seriously considered before action is taken.

Monitoring and recommendations

The Government has said that when the 2022 regulations were in force, this did not dramatically reduce the number of workers taking strike action. The EHRC says there are not sufficient records to enable this to be assessed. It has been suggested that should the new proposal be confirmed, the Government should require businesses to confirm when they use agency workers to cover strike action. This will enable the impact of the repeal to be measured.

Next steps

The consultation is now closed. We will continue to report on developments once the Government publishes its response.

For more information or advice, please contact Rory Jutton in our Employment team on 0117 314 5286, or complete the form below.