Agency workers cannot cover those on strike

High Court decision

Until 21st July 2022, Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulation 2003 prevented employment businesses from supplying temporary workers to cover the work of those taking part in industrial action. The High Court has held that the Secretary of State had failed to comply with his duty to consult before making regulations allowing employment businesses to provide agency workers to cover striking workers. Consequently, the court quashed the regulations.

Government’s options

The Government has two options: consult and place new regulations before Parliament or appeal against the court’s judgment. Both options will take time and an appeal may be unsuccessful.

Where do we stand?

Until the government decides, the High Court’s quashing order means that, with effect from 10th August 2023 employment businesses will no longer be able to supply temporary workers to employers to cover those involved in industrial action.


What are your alternatives?

  1. Use existing employees from other parts of the business or existing casual workers.
  2. Engage temporary workers directly without using an agency or employment business.
  3. Use an employment agency to find employees that you can employ directly on a short-term basis. The agency could also be used to do pre-employment screening or interviewing.
  4. Carry on using agency workers already supplied by an employment business, or request further agency workers, to do any of:
    The work they were originally supplied to do.
    The work of striking workers.
    The work of other employees who have been reassigned to cover striking workers.
  5. Use any workers (whether or not they are agency workers) to replace workers who leave or are absent during a strike but who are not participating in the industrial action.
  6. Temporarily outsource affected business functions to a third-party contractor.
  7. Use temporary workers, including agency workers, after the strike is over to clear any backlog.

Source: R (ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) (13 July 2023)