High Court rules ‘strike-breaking’ agency worker regulations unlawful

Judge agrees with UNISON that the then business secretary, Kwasi Kwarteng, acted unlawfully, unfairly and irrationally

The Royal Courts of Justice in London

UNISON has defeated the government in the High Court over strike-breaking legislation that was introduced last summer.

The High Court has ruled that the legislation, which allows employers to use agency workers to replace those on strike, was unlawful, unfair and irrational.

The case marks another success for UNISON and its members in challenging laws restricting workers’ rights.

The judgment follows successful judicial review proceedings lodged by UNISON alongside the NASUWT and TUC, whose case is on behalf of 11 unions. Together, the unions represent millions of workers in the UK.

Since 1976, it has been illegal for employers to introduce or supply agency workers to replace workers who are taking part in a strike or industrial action.

However, in the heat of last summer’s rail strikes, then secretary of state Kwasi Kwarteng rapidly removed this regulation without consultation. 

Since July 2022, agencies have been permitted to supply temporary workers to replace striking workers. Following a hearing in May at the High Court, Mr Justice Linden has today upheld the claims of UNISON and other unions that the government acted unfairly, unlawfully, and irrationally

The judgment now quashes this strike-breaking legislation, removing it from the statute books. The previous protection for striking workers has been restored. 

Commenting on the judgment, UNISON general secretary Christina McAnea said:  

“No one ever wants to go on strike. But when that difficult decision has been taken, employers should be throwing everything but the kitchen sink at ending a dispute, not inflaming tensions by undermining staff.  

“This futile piece of legislation has barely spent a year on the statute book. Parachuting untrained agency workers into the midst of industrial hostilities isn’t fair or safe for them, the public or the staff out on strike. 

“This is embarrassing for ministers. Not only did Kwasi Kwarteng help trash the economy as chancellor, now his bulldozer attitude when business secretary has made the government look extremely foolish. 

“With his fingers stuck firmly in his ears, Kwasi Kwarteng ignored the advice of almost everyone around him, showing a total disregard for working people and their historic rights.”

And she continued: “Hopefully, the government has learned a big lesson. If ministers act in haste, they’ll end up repenting at leisure, as this judgment proves. 

“To spare themselves future shame, ministers should ditch their ill-advised strikes bill, and focus instead on working with unions to solve the country’s many problems.” 

UNISON’s director of legal services Adam Creme said: “UNISON will speak up and challenge unlawful legislation that restricts our members’ rights. This judgment is the latest in a long line of victories in strategic litigation for UNISON and our members”.

UNISON continues to fight to protect the right to strike as the Strikes (Minimum Service Levels) Bill continues to make its way through parliament.