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Legislation allowing employers to replace striking staff with temporary workers is unlawful and has been quashed.

In 2022 regulations were brought in to remove the long-standing ban on employers using temporary workers to perform duties normally performed by striking workers during industrial action.

Thirteen trade unions issued judicial review proceedings in the High Court, challenging the lawfulness of the 2022 regulations. The unions argued that the government’s decision to enact the 2022 regulations was unfair and that the Secretary of State failed to comply with his statutory duty to consult before making the 2022 regulations, as well as breaching his duty under art. 11 of the European Convention on Human Rights (ECHR) to prevent unlawful interference with the rights of trade unions and their members.

The case was heard in May 2023. In a judgment handed down on 13 July 2023, the High Court upheld the application for judicial review on the consultation ground and declared that the 2022 regulations were unlawful, unfair and irrational, although the court did not express a view on the art. 11 ECHR ground.

The High Court quashed the regulations with effect from 10 August 2023. From that date, employment businesses will once again be prohibited from supplying temporary workers to cover the duties of those taking part in official industrial action or to cover the duties of another worker of the hirer who in turn has been reallocated to cover the duties of those taking part in industrial action.

It's reported that the government has decided not to appeal the High Court's decision.