The Government’s approach to employment law matters has been a passable facsimile of a tortoise, already lazy by disposition, undertaking a work to rule. We had an underwhelming report by Matthew Taylor on the gig-economy in 2018 which it took until just last week to explain the Government response on employment status was to wait and see what will develop. In a wave of complaints to employment tribunals about the impediments to women undergoing the menopause the government’s considered approach was to do nothing to make it easier for women to challenge their employers for unfair sex related discrimination. After a bit of chest thumping about the inhumanity of P&O dismissing 800 workers by video conference there has been few substantive changes to prevent this happening again (a non-statutory ACAS guide was issued which is nothing but gloss and a seafarers wage reform that would not stop dismissals). Parliamentarians from other parties have even had to resort to submitting private members bills implementing what the government have already seen to encourage to the government to provide support for its own policies.

If it can be epitomised in one failure this can be seen in the Where’s Wallyesque Employment Bill. The government promised a bill would be introduced to Parliament over 20 times since 2019, and yet the Bill has never seen the light of day and the vital protections it could provide to workers in many cases seemingly condemned to the scrapheap like the prospect of a reasonable living wage for UK workers. If a sedate tortoise is a synonym for the inclination of the government to legislate to protect workers’ rights the same cannot be said for its approach to anti-union legislation. As soon as there was a prospect of a union wide response to the cost-of-living crisis the desire of the government to promulgate was more akin to that of the jackrabbit. As though trying to revivify the spirit of the Organisation for the Maintenance of Supplies (OMS), an organisation set up in 1925 to try to counteract the threat of a general strike by providing scab labour, the government found hitherto unavailable Parliamentary time to pass the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 to amend the law to allow employers to replace workers with temporary strike replacement labour – a change not even recruitment agencies were advocating for.

Such was the Government’s overwhelming lust to promulgate new employment legislation that one anti-union law change was insufficient to satiate the desire, and the Government, through Kwasi Kwarteng’s Department for Business, Environment and Industrial Strategy introduced The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 quadrupling the maximum fine a Trade Union can receive for inducing an unofficial strike. As the biblical adage puts it, by their fruits shall ye know them.

In is just possible that in their excitement to legislate the Government will prove the advice of the the emperor Augustus to “make haste slowly” (festina lente) to be on the mark; if it does, I for one will be delighted.

On Friday 22 July, the day after the strikebreaking law came into effect Unison announced that it was seeking to Judicially Review the Government over the legislation, with Unison explaining that the grounds for the review was because of the law’s incompatibility with the rights of members under Article 11 of the European Convention of Human Rights (freedom of association) on the grounds that it is an incursion of the right to strike.

Then, on 26 July Thompsons Solicitors announced that it had commenced legal proceedings (under the Pre Action protocol) also challenging the legislation on behalf of twelve unions coordinated by the TUC.

The twelve unions (Unite, USDAW, BFAWU, UCU, ASLEF, FDA, NEU, PCS, POA, BALPA, and GMB) do not include Unison. There has been no explanation why Unison have gone off on a frolic of their own, but perhaps time will tell. It is also noteworthy that other major players like RMT are not listed so would not be surprised to see other challenges from these players given they are the likely immediate target of the legislation.

The letters issued to BEIS have not been published so it is impossible to say with certainty how the claims of the main unions are different from Unisons but, based on the summary by Thompsons the TUC challenge, like Unison, challenges the compatibility of the legislation with Article 11 ECHR but also adds grounds of challenge not hinted at by Unison’s press release.

First, the regulations are alleged to breach EU-UK Trade and Cooperation Agreement which committed the UK to “the UK to respecting, promoting and implementing internationally recognised core labour standards, including those relating to freedom of association and the recognition of the right to collective bargaining.” This agreement was given effect in UK law by European Union (Future Relationship) Act 2020 and, according to Professor Ewing, may be a basis for constraining the Government to introduce secondary legislation at variance with the Act.

Second, the Thompson’s letter on behalf of the twelve unions also suggest that the Employment Agencies Act 1973 (under which the Statutory Institute was passed) required consultation with which the Government failed to undertake before amending legislation. This complaint appears to be a reference to section 12(2) of the Act which is quite clear on the obligation: “The Secretary of State shall not make any regulations under this Act except after consultation with such bodies as appear to him to be representative of the interests concerned.”

Here’s hoping the challenge(s) are successful and this pernicious piece of legislation that no-one other than a few ideologues ever asked for is put out of its misery soon.


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