Teacher strikes

Use of agency workers to cover strikes quashed in High Court

Government's approach found to be 'so unfair as to be unlawful and, indeed, irrational'

Government's approach found to be 'so unfair as to be unlawful and, indeed, irrational'

A law change allowing schools and other employers to use agency workers to cover strikes by staff has been quashed in the High Court after it was found to be “unlawful and irrational”.

The government introduced the change last year in response to threats of widespread industrial action over pay.

Unions including the National Education Union, NASUWT teaching union and support staff unions Unison, the GMB and Unite took the matter to judicial review, warning the change was unlawful and carried out without proper consultation.

Today High Court Justice Thomas Linden upheld their claim, warning the approach of the government was “so unfair as to be unlawful and, indeed, irrational”.

He said there was “virtually nil consultation prior to the decision” to change the law, and that the government “did not even consider the information available as to the responses” to an earlier consultation in 2015.

The judgment also stated that Kwasi Kwarteng, who was business secretary at the time, committed to the law change “at a time when the advice to him was that it would be of negligible short term benefit and probably be counterproductive”.

‘Schools must stop now’

He also did so “without reference to the views of those who operate in the recruitment sector and on the basis that the government’s evidential case that the change would be beneficial – in the form of the 2022 Impact Assessment – would be prepared after the event”.

Paul Nowak
Paul Nowak

Schools Week understands the law change will be quashed from August 10. It is not known whether the government plans to appeal.

Legal action by some of the unions was coordinated by the Trades Union Congress. Its general secretary Paul Nowak said schools “must now immediately stop using agency supply teachers to try to break strikes. The judgment is clear – this is illegal”.

“Using these tactics will only make industrial relations worse and drag out disputes.

“If ministers want to put an end to ongoing disputes in the education sector, they should get around the table with education unions and negotiate.”

‘Driven solely by political ideology’

Richard Arthur, head of trade union law at Thompson solicitors, said the judgment “makes clear that the then secretary of state had a staggering disregard to his legal obligations when introducing legislation that enabled employers to engage agency workers to cover the duties of striking workers”. 

“He was driven solely by a political ideology to meet a self-imposed deadline to implement the regulations in the face of mounting industrial action across the country.”

Dr Patrick Roach, general secretary of NASUWT, which brought its own judicial review alongside the TUC-coordinated action, said the law change “sought to undermine and weaken the rights of all workers, including teachers, to take legitimate industrial action”.

“Rather than seeking to abuse its powers to erode the rights of workers, the Government should be focused on improving the pay and working conditions of all workers.”

A spokesperson for the Department for Business and Trade said they were “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”.

“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. We will consider the judgment and next steps carefully.”

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