Category Archives: Agency / Fixed Term Workers

Agency / Fixed Term Workers, blacklisting, Employment Rights Act 1996, Employment Tribunal, Trade Unions, Unfair Dismissal

Unite Union, Labour, and Zero Hour Contracts

milbandIt is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at the London Evening Standard targeted Unite (and by implication Miliband) on Thursday (on the eve of the leadership debates) for hypocrisy.

Unite the Union is the Labour Party’s largest financial backer which is the basis for the LES to run a story on Thursday that ‘Labour’s biggest union donor used zero hour contracts’. The background is what is assumed to be a Preliminary Hearing at the London South Tribunal for Martyn Reuby who is bringing an unfair dismissal claim against Unite the Union. Mr Reuby had delivered training for Unite at many local colleges; he contended that he was an employee of Unite, whilst Unite contended he was either self-employed or employed directly by the colleges. In order to make that claim Mr Reuby would need to establish he was an employee, hence the reason for the judgement which was not about whether he was on a zero hour contract but whether he was an employee.

In its judgement, which Unite have said it is appealing, the tribunal determined that Mr Reuby was employed on a series of short term contracts. It was Mr Reuby’s solicitor, not the tribunal, that suggested he was ‘effectively’ on a zero hour contract (the use of such an adverb usually in my experience has the same intellectual coherence as ‘I am not a racist, but …’ The Unite response to the LES’s story is pretty unambiguous: “Unite does not use zero-hours contracts and it is misleading to say so”.

On that basis the story is a pretty empty attack piece lacking in substance but of mud slinging. When the politics of employment law apocalypse fail, the next recourse is claims of hypocrisy. But here, it is not even Miliband being accused but a Labour Affiliate.

Still, while the charge of hypocrisy may be technically incorrect and represent some pretty petty political pointscoring the tribunal judgement does again bring into focus the tendency of some parts of the Union movement, when employing staff, to adopt some pretty shoddy employment practices. This is something I have picked up before. Here, even by their own admission, Unite have been procuring the services of a worker who even in the very best designation (the one Unite tried to argue) was a self employed worker who would preferred to have been an employee. In fact, however, the Tribunal’s judgement is that he was an employee in a succession of fixed term appointments – this is precisely the insecure type of employment which the union movement has criticised as being the basis of the ‘economic recovery’, workers with no security of employment. Whether or not the union succeeds in its EAT appeal the fact remains that in a duty core to the union (education) that is not going to diminish any time soon the union has chosen to deprive workers of secure employment. That is not a decision of the Labour party but a decision taken on behalf of the Unite executive.

It is right that questions about this conduct in union recruitment practices are asked. What is unfortunate however is that these question are being asked by right wing press barons (and here, unlike here, the term is appropriate) given the issues are raised by them as a matter of political opportunism and not the rank and file membership itself.

In Mr Reuby’s case Unite are defending the claim of unfair dismissal on the basis that he was not an employee. It is a defense that is certainly open to them to make legally, but the decision to pursue such a defense is morally questionable. A matter of days ago Unite published a review of Dave Smith and Phil Chamberlain’s Blacklisted (a review will follow here on Employment Writes soon).

Blacklisted tells the story of the scourge of blacklisting in the construction industry – there is a wealth of evidence that many construction companies sacked trade union representatives when they raised concerns or even when they first became known as a union activist. This affected many workers – when it became known that these companies had sacked their employees for raising concerns many of those affected, understandably, sought to lodge employment tribunal claims. One of the primary defense strategies these companies was to deny that the workers were employed but that they were ‘self employed’ or agency workers, if they are not an employee they do not have a legal remedy for unfair dismissal. It is the reason Dave Smith lost his recent Court of Appeal case of unfair dismissal. Following the outcome Dave Smith commented (and I entirely agree):

What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens.

The result of this tactic was that the overwhelming majority of those who submitted employment tribunal claims lost them because the courts found they were not employees because of their particular working arrangements. How disappointing then that Unite, who have made very positive moves in the anti-blacklisting campaigns and supported many of these claims have adopted the very same strategy and have sought to deprive workers of the right to legal remedy by contesting the fact that those who work for them on a continuous basis are in fact employees. This is especially the case since as a matter of policy (see 2014 Policy Conference motions) Unite are opposed to bogus self-employment. It may be that Mr Reuby’s claim is without merit and that Unite have not subjected him to any detriment for whistleblowing but the decision to seek to deny him a hearing is certainly questionable.

This is something members should be raising with their union executives with some earnestness with or without press coverage at election time.

Agency / Fixed Term Workers, Equality Act 2010, Indirect Discrimination

Indirect Discrimination and Fixed Term Workers

whitehallA few weeks ago I made reference to the preamble of European Council Directive 1999/70/EC on fixed term appointments which states that the “parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers.”

Likewise, the Civil Service Management Code, set out at para 1.2.3 that “Fixed-term appointments are temporary appointments to meet short term needs. Such appointments may be made only where there is a genuine need to employ people for a short period, and must be compliant with the Recruitment Principles.”

However, as is often the nature of things despite such words the reality is less clear-cut. Whereas fixed term appointments were once reserved for specialist roles there has been a definite increase in such appointments at more junior levels of the civil service and for jobs that are indistinguishable from their permanent peers. The UCU in Lancaster University v UCU [2010] UKEAT/0278/10/2710 won an important judgement that required collective consultation when an employers planned not to renew a large number of contracts. However, just when the climate looked a little more rosy for those in more vulnerable employment the government promptly amended the Trade Union and Labour Relations Act 1992 to make clear that the non-renewal of a fixed term appointment no longer counts as a dismissal for the purposes of statutory redundancy consultation thereby pulling back the extra protection the judgement had afforded FTA employees.  And so, the position is now that a fixed term appointee who is dismissed for redundancy reasons when the reason they are dismissed is that they are a fixed term appointee will now find it very hard to argue they have been treated less favourably as a fixed term appointee.

And so now, as we are faced with government desperate to find further staffing ‘efficiencies’ it is not a surprise to find that it is its fixed term appointees who are being targeted for dismissal. Which raises the prospect that such a course of action may itself amount to indirect discrimination if employees identifying with certain protected characteristics are disproportionately affected. It appears there is precedent for this argument.

In Whiffen v Milham Ford Girls’ School & Anor [2001] EWCA Civ 385 a teacher had been on a series of fixed term appointments for five and a half years. The school had to make job cuts and had a policy of letting its fixed term appointees go before considering the redundancy of permanent staff; women were much more likely to be fixed term appointees. In this case which was brought under the then extant Sex Discrimination Act, the Court of Appeal had to consider whether the treatment, which they accepted put female employees at a disadvantage, could be objectively justified. The Court found that the treatment was not objectively justified and that the employer had indirectly discriminated against the claimant on the basis of sex.

I do not see any reason, in principle, why the same situation could not apply here when Civil Service begin their purge of fixed term appointments and reps would be wise to interrogate equality data on who has been affected by planned job losses. It seems to be not only are there sex discrimination possibilities but also potential age discrimination concerns (in my experience many FTA employees are aged 30 or under).

Agency / Fixed Term Workers, Trade Unions

Trade Unions and Fixed Term Workers

2 Comments

tuc_LogoThe Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations are, undoubtedly, an important protection against unscrupulous employers.But a reading of the preamble to the Council Directive 1999/70/EC, the European Directive the UK regulations implement make clear that fixed term employment should not be seen as the norm.

The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.

This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations.

In spite of this I have observed a definite trend in that a significant number (and sometimes a majority) of new trade union vacancies are being advertised as being available on the basis that a would be employee being guaranteed employment for a limited period of time, usually only 12 months.

Certainly, I have no doubt that in certain circumstances a fixed term appointment may be reasonable. For example: if a temporary replacement is needed for an employee on a career break or maternity leave or to work on a time limited campaign. But the majority of posts are not these.

Take today, for example. At the moment the TUC website has the following posts advertised from affiliate unions:

  • NASUWT – 2 Posts – Both Permanent
  • CSP – 3 Posts – One three months FTA “with possibility of permanency”, the others Permanent
  • Unite – 7 Posts – One Permanent, the others one year fixed term appointment.
  • NAHT – 2 Posts – Permanent
  • GMB – 7 Posts – 2 Permanent, the others one year fixed term appointment
  • Prospect – 1 Post – Permanent
  • RCN – 2 Posts – One year fixed term appointment
  • FBU – 1 Post – Permanent

In sum then, of the 25 open vacancies being advertised on TUC Jobs today 10 (40%) are only available on fixed term appointment. There is not any indication in any of the advertisements why the posts are only available on a fixed term basis and nothing in the job descriptions to indicate that they are time limited. And, since all new employees would be required to pass a probationary period it cannot be to determine if they are a ‘good fit’ for the role.

Today’s figures are fairly representative of general trends in trade union recruitment and that concerns me.

Let’s get the personal reason out of the way first: I am not just looking at TUC jobs for entertainment purposes, if a role comes up I would like to and think i would do well do then I’d quite possibly apply for it. And there have been jobs that i think I’d be good at but, normally – and this may just be bad luck – it is those jobs that seem to be available on a fixed term appointment. I am certainly not on a great wage but nonetheless, even if the roles advertised pay a bit more than I am at the moment I am not going to leave a role where I have permanent contract for a fixed term one with no job security.

Second, I think the least we can expect of trade union’s as employers is that it sets a good example for other employers. Just last year the TUC published research that showed that by a significant majority new jobs created lacked security, be that because they were agency, zero hour or fixed term appointments. Whilst I am not suggesting that trade union employment practices are on a par with purveyors of zero hour contractors etc this reliance on temporary contracts to complete ostensibly permanent roles is not good enough. After all,  even the EC acknowledged contracts of “indefinite duration” are the “general form” of employee recruitment.  It seems to me to be bad form that major unions are lagging behind this ideal.

Third, we know that this government has made legal remedy much harder for employees, restricting the right of employees to claim unfair dismissal after over two years service. With the huge increase of those workers on insecure contracts of employments there are huge swathes of the current workforce who are deprived any legal redress as a result of Conservative and Lib Dem policies (and, Labour has not exactly been forthcoming in committing to rescind these changes). To be sure, the TUC have been critical of these laws but let’s be under no illusion TUC HR managers in setting these contracts at a length below that which enables employees to challenge their dismissals in a meaningful way don’t know exactly what they are doing. And, since next to none of these fixed term advertisements show no indication that they are in fact genuinely time limited the effect is that these union HR departments have knowingly pitched their adverts to ensure any successful applicant has no recourse if their ‘face does not fit’ once in post.  Unenforceable ‘promises’ such as ‘with possibility of leading to permanent contract” only reinforce this cynicism. If you get a post don’t for the sake of your career ask any difficult questions or volunteer to be a union rep, or magistrate, or army reservist etc as you may find a contract is not renewed for ‘business’ reasons.

There is nothing unlawful about the advertisements from these TUC unions, but am I alone in thinking this is bad form and a bad example?

Agency / Fixed Term Workers, Employment Appeal Tribunal, Employment Tribunal

Civil Service Recruitment and Agency Worker Regulations

I have just been made aware of an interesting first tier tribunal decision that is becoming more and more of an issue for union members who are agency workers on long term contracts.

Paragraph 13 of the Agency Worker Regulations 2010 states that

13.—(1) An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.

In this case (Coles v MoD) the claimant had been an agency worker under contract to the Ministry of Defence since 2005 until 2013, when his contract was terminated. In early 2013 MoD conducted a redundancy exercise that resulted in 500 staff being redundant. Presumably as part of a redundancy avoidance exercise the MoD advertised the claimants role under stage 1 of the civil service recruitment process (which limits applicants to those at risk of redundancy). The claimant was not informed about this advertisement until a few days before the closing date and to access information the claimant needed to register on the Civil Service recruitment website – it does not look as though the claimant did so. He was however also advised that he was unable to apply for the role, and would be only able to do so at the point that it was advertised to external applicants (namely, stage 4).

In the event the post was given to an applicant who was a permanent employee  of MoD and was at risk of redundancy and, as a result, the claimant’s contract was terminated in August 2013.

The claimant made two claims to the Employment Tribunal (both with reference to section 13 of the AWR 2010):

  • The Respondent had failed to advertise all available absences to the claimant; and
  • In refusing the claimant permission to apply the Respondent the Respondent did not give the “agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”

The ET found in favour of the Respondent on both points, and on the basis of what I have seen I think it do so correctly. Information on the advertisements was readily open to the claimant. On the second point the tribunal considered that the legislation does not prevents an employer from giving priority when vacancies arise to permanent staff who are at risk of redundancy and/or have been placed in a redeployment pool during a restructure.

It seems to be the decision was the right one. However, whilst the judgement, rightfully, allows preferential treatment to be given to workers at risk of redundancy what of those not at risk? Unfortunately, the ET looks as though it failed to address this issue which, to me, seems to be the most appropriate “comparable worker”. Is a civil service employer entitled to refuse the opportunity to agency workers to apply for posts at stage three of the civil service recruitment process (as they have been doing with some regularity)? That issue remains unclear but, given the decision is in Coles is apparently under appeal to the EAT, this is something which will hopefully be clearer soon.

That of course does not change the fact that there is clearly an issue of injustice here – after over 7 years doing the same job it is clear that the claimant should never have been in such a precarious employment situation in the first place. Although not as precarious as the scourge of zero hour contracts this is an area employment legislation needs to address by exploring a statutory right for agency workers to have a right to be converted to permanent employees after a period of time where the recruitment is clearly not ‘exceptional’ or ‘temporary’.

Case ref: Coles v Ministry of Defence [2014] ET/1603792/2013