Legal changes introduced by the government to allow agency staff to fill in for striking workers have been overturned by the Supreme Court, with ministers’ approach to politics described as “irrational”.
A number of unions, including Aslef, RMT and Unite, have joined the legal challenge to “strikebreaking” regulations announced by the government last summer as they faced widespread industrial strikes across railways and other sectors.
In a ruling delivered Thursday after a hearing in May, Justice Linden ruled that the approach taken by ministers was “so unfair as to be unlawful and, in fact, irrational”.
The unions argued that changes to regulations announced by the then Business Minister, Kwasi Kwarting, undermined the right to strike, and were made illegally.
In June 2022, Kwarteng pledged to quickly push through changes, “undoing the shackles of the 1970s” to give “companies free access to full-skilled employees quickly.” Then-Transport Secretary Grant Shapps said it was a “vital” reform to reduce strike disruption.
However, the Supreme Court ruling said Kwarteng showed little interest in evidence or counsel and “his approach…was so unfair as to be unlawful and, in fact, irrational”.
He also said that Kwarteng committed to changing the regulations when “the advice to him was that it would be of little benefit in the short term and possibly counterproductive”.
Responding to the ruling, Unite General Secretary Sharon Graham said: “This is a complete vindication for unions and workers.
“The government’s decision to allow employers to hire agency workers to undermine legal strike action was a cynical move to support their friends in business and weaken workers’ legal rights to withdraw their employment.”
The change was one of a number proposed by the government to reduce the effectiveness of strikes, including ensuring that unions and workers are legally obligated to provide some services during a planned industrial strike. The Strikes (Minimum Levels of Service) Bill is still passing through Parliament.
Mick Whelan, General Secretary of ASLAWF, said the union was “proud to stand with other unions to legally challenge these changes, and we will continue to do so in all those other areas, including minimum levels of service, to ensure equal opportunities for workers here in the UK.” .
The Congress of Trade Unions said the ruling was a “badge of shame” to the government and owed its assessment of Kwarteng’s behaviour.
Its general secretary, Paul Nowak, said the government had worked to change the law despite widespread opposition from the agency’s employers and unions. Courts have even found that ministers ignored evidence that the measure would backfire.
This is the same reckless approach behind the anti-strike bill, which has faced a barrage of criticism from employers, rights groups and international bodies.
Ministers should spare themselves further embarrassment. The agency worker laws that cynically break the strike should be repealed for good—and the tough anti-strike bill should be repealed for good, too.”
Richard Arthur, head of trade union law at Thompsons, said it was an “important victory” for the unions, adding that the ruling made it clear that the then minister was “spectacularly disregarding his legal obligations”.
He said, “This is a bad law enacted on the hooves, and the court was right to hold the government accountable.”
A spokesperson for the Department for Business and Trade said: “We are disappointed with the Supreme Court’s decision as we believe the decision to overturn the ban on agency workers covering strikes is consistent with our legal obligations.
“The ability to strike is important, but we maintain that there needs to be a reasonable balance between this and the rights of companies and the public.
“We will consider the ruling and the next steps carefully.”
In response to the ruling, Julia Kermode, founder I’m working – The Advocate for Temporary and Independent Workers – said: “This is a huge victory for workers’ rights. It’s draconian and short-sighted legislation that threatens workers’ rights.”
“The temps were recruited at the drop of a hat to cover the striking employees. After crossing the picket line, the temps were thrown into a hostile environment and I doubt many knew why they were there.
“There is a reason employees choose to strike – and it’s not always just about wages. Many are very concerned about working conditions. By allowing temporary employees to replace them under the same conditions, the government was showing no regard for the welfare of the temporary workers.
“With this ill-conceived legislation out of the way, the focus should shift to the frankly immoral anti-strike bill. The earlier this gets ripped apart, the better.”