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Evaluating Employment Agency Complexities

  • 09 Pages
  • Published On: 03-11-2023

In order to evaluate the given statement we shall first consider the facts of the case in which the said statement was made.

Mrs James, who had served for Greenwich Council (outsourced through a subsidiary of Brook Street plc) for tenure of three years, had started with another organization being outsourced for the same job. She was given a different offer of contract agreement. The organizations paid her in light of week after week timesheets. She was expelled after she evidently took wiped out leave for two months without illuminating the organization or the committee for her reasons. At the point when Mrs James returned, she had been supplanted. She argued that she was unreasonably rejected of her job.

The concerned statement implies to the complications that one faces while working through different employment agencies in the country. It has been made in the postscript by Mummery LJ while dismissing the appeal made by Mrs. James against Greenwich London Borough Council on the grounds of unfair dismissal from employment. Under the ERA 1996 sections 94 and 230, an entity cannot approach the court of justice in case there is no requisite mutuality of obligation, such as expressed and/or an implied contract, existing between the employer and the employee engaged or employed through an agency.

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However, this opinion has been overridden by Lord Clarke’s decision in the Supreme Court of the United Kingdom in Autoclenz Ltd v/s Belcher on 27 July 2011. This is termed as a landmark decision as far as the opportunity of required protection of principles for individuals who are working is concerned.

According to Lord Clarke, the comparative negotiation power of the parties must be considered while deciding if the conditions of any agreement that was written in actual amount to what was discussed and that true agreement should have often been gleaned from every possible circumstances of that case, not to mention that the agreement in writing is merely a portion of that case. Thus this might be taken into account as the intentional solution of the problem.

In 2016, amendments were made in the country’s employment law. The earlier definition, that of an employee (referring to the individuals who are normally employed within the Great Britain as well as under a contractual agreement of employment that is governed by the law of UK) has been fully replaced and the illustrative notes that state that the s83 Equality Act 2010 more wide definition (which is inclusive of those with personal contracts to do tasks) will be applied. Business partners, which include the members belonging to LLPs, have been excluded expressly. An exception though has been also made for the workers who are working personally with a contract from the attendance or reporting duty for which the employer is not having the relevant data as it is not reasonably feasible to obtain the same.

  1. James v Greenwich London Borough Council [2008] England and Wales Court of Appeal (Civil Division) (England and Wales Court of Appeal (Civil Division).
  2. A. Bogg, Sham Self-Employment In The Court Of Appeal (2nd edn, 2010).
  3. K. Handley, Sham Self-Employment (4th edn, 2011).

It is mandatory for the country’s large employers to publish information related to their gender pay gaps. There were discrepancies in the payments between men and women not only in the direct employee segment but also in the worker segment recruited from the agencies. Most agencies discriminate between payment of the male workers and the female workers. From 06 April 2017, publishing of information related to gender pay gaps will be applicable to private sector employers employing 250 or more people. The gap in payment between women and men has to be published by concerned employers. Within this information, the details of the gap in bonus payments will have to be included also.

An amendment has been made to restrict the exit payment of the public sector employees. It has been capped at 95,000 GBP. However, the date for its implementation has not yet been confirmed. Also, it is mandatory for the public sector employees who are earning 100,000 GBP or in excess per annum, to pay back the amount of exit payments that they had received. This is applicable if they are joining again as an employee within the same segment of a sector and that too within one year of their exit. It is already been in execution since 01 April 2016. This has been decided to restrict the attrition of the company employees and providing fair opportunities for temporary workers and agency workers. The company employees once looking for a change gets more preference than the agency workers. To control this, the above mentioned step is beneficial for the agency workers.

The working arrangements as followed by different employers should be reviewed. It should be ensured that the workers are allowed to get their statutory rest breaks even if they are from the agencies. Agency workers were not allowed proper breaks as par the company employees. In Grange v/s Abellio, the Employment Appellate Tribunal took a purposive approach to the Working Time Regulations in ruling that a worker can bring a claim for denial of their right to a rest break, even though the employer did not make an explicit request for a break which was refused by the employee or the company representative, if the arrangements in effect prevent the worker from exercising this entitlement. This can be differentiated with the position where the worker is able to take a break but chooses not to for his own reasons. Employers are not required to force an employee to take a break.

  1. Autoclenz Ltd v Belcher [2011] The Supreme Court of United Kingdom (The Supreme Court of United Kingdom).
  2. National Minimum Wage And National Living Wage Rates - GOV.UK' (Gov.uk, 2016) accessed 9 March 2016.

Vicarious liability claims have also been an issue. It has been ruled by the Court of Appeal that an employer (a quasi-employer, in the form of a Commissioner of Police), who has been taken to court for vicarious liability for the activities of its employees may conceivably have a responsibility to care for those employees who are related to the conduct of that legal trial, so as it is not required to sacrifice their professional reputation and interests and without reasonable warning and good reason. The preparation and conduct of the defence could be impacted by this duty. Police authorities were supposed to take money in the name of providing coverage to the agencies providing workers. In James-Bowen v/s Police Commissioner case, it led to an assault of the agency authorities by the police where the law protectors were at fault. The Commissioner had settled a claim for vicarious liability for an assault allegedly carried out by police officers in James-Bowen v/s Police Commissioner for the Metropolis. However, the Court denied striking out the claim that the failure to take steps to strengthen the defence was a breach of the responsibility to care for the officers, which lead to settling the claim. Their claim of damages for economic loss as a result of the damage of their careers as well as damage of reputation was allowed for proceeding to trial.

However, during the trial, the Court rejected arguments that there was an implicit retainer between the claimants and the Commissioner's lawyers. Assurances were given by the lawyers that they were acting in the claimants' interests and that they would protect them were simply an informal recognition of the parties' that shared an interest in defeating the claim. Moreover, based on the facts, the Commissioner had not expressly assumed responsibility to protect their interests.

  1. Grange v Abellio [2016] Employment Appeal Tribunal (Employment Appeal Tribunal).
  2. Julian Cuppage, 'Recent Developments In UK Labour Law | Iglobal Law | Global Labour Law' (Igloballaw.com, 2016) accessed 9 March 2016.

Foreign workers also make a good portion of the agency worker status. Laws related to employment of foreign workers have also been reviewed and updated. Numerous changes have been made in the Immigration Bill to the law applicable to foreign workers.

Things have become complicated after Brexit happened on 23 June 2016. The leaving process is underway by providing a notice under Article 50 of the treaty on the European Union. Globalization has had a noteworthy effect on the nature and profile of work rights seemingly decreasing the viability of national level business law and work advertise direction with issues of work misuse and the corruption of specialists' rights being a typical topic. The part of universal work direction has obtained restored consideration and relevance. Immigration has held a key position in the battleground in the Brexit referendum debate. Movement without any issues for the workers is the main area of focus of European Union enrolment, which guarantees that European Union citizens and members of their families can either work or stay according to the location they want to without requiring movement authorization. However, lately the total relocation of people immigrating to Britain touching a new high, the individual entities that have battled to make Brexit happen, wanted to finish the programmed authority of European Union nationals to go and work uninhibitedly in Britain.

Despite the fact that the UK will now be making arrangements to leave the European Union, existing conditions will most probably be staying in the middle of intricate as well as protracted exchanges about Britain’s later association with European Union. It is to be agreed upon that intermediate principles will be a surety that any European Union residents at present in Britain will be enjoying the unobstructed right for work as well as live within Britain. And exactly the same will be for those two million or more British residents as of now utilising the rules of free movement to dwell in other European nations.

When Britain is no longer in the European Union, Britain could imply new conditions for the future European Union explorers to Britain and the remaining European Union countries might do the same for British people. Britain can necessitate that European Union residents have to go through the same framework of migration that at the moment applies to the non-European Union nationals for persons working in the UK. This administration of visa in which Points Based Framework is incorporated, gives surety that work visas for Tier 2 categories are only issued to workers engaged in a properly skilled involvement in Britain at a minimum specified compensation, to keep away from employers undermining the pay rates of UK labourers.

The Agency Worker Regulations 2010 gives essential protection to workers working through agencies, the most principal of those protections being the privilege to a similar fundamental condition of employment and working as those who are directly recruited by the hirer following 12 weeks on task. Any reasonable person would agree that the Directions have, all in all, demonstrated disagreeable with English organisations which have been felt compelled in connecting short terms crevices to resourcing. In this regard, it is very likely that this bit of enactment is the most at danger of considerable change taking after exiting from the EU.

Pensions represent a vital component in the business relationship and a perceptible extent of the enactment managing annuities originates from the EU. In any case, the majority of it has been handed over to the law of UK so it is supposed to not stop to apply after Britain's exiting from the European Union. For instance, even the most sensational arrangement of the Treaty of Rome, that women and men ought to be paid similarly for equivalent work, which offered ascend to all the equalisation issues in benefit plans, is revered in UK law, currently under the Equality Act 2010. Not only men and women employees from the company will be getting pension, the same is applied to the agency workers after the twelve week period after which they are treated at par with the company workers.

The Supreme Court of the United Kingdom also ruled that it cannot be considered a discrimination against racism if employees or workers who have migrated for work purpose through agencies and have been indulging in vulnerable activities are subjected to abuse because of their unsocial acts. This race discrimination cannot be considered as direct. The status of immigration is not an expressly protected characteristic and it is not right to be compared at par with nationality as nationality is supposed to be a protected characteristic. There are plans that the rulings related to employment tribunal might be made available online for access to the persons.

  1. Legislative Changes - Forthcoming Legislation' (HR-Inform, 2016) accessed 9 March 2016.

In light of the concerned statement the following ruling by the Supreme Court can also be considered a development. Any private communication that can have an impact on matters related to the work or site of work cannot be considered for privacy. Earlier company employers used to enjoy this kind of benefit but the agency workers were looked upon suspiciously in case of any leaks about company information. Post 2016, as per Supreme Court, if any leaks happen, only the agency workers cannot be held responsible. Bosses might have the capacity to depend on a worker's private telephone interchanges to legitimise discipline or rejection now and again, as representatives won't generally have a sensible desire of privacy. Regardless of whether there is such a desire will be certainty delicate with applicable elements inclusive of whether that lead concerns business related matters, whether the representative is in charge of bringing matters considered to be private into the work circumstance, and whether the worker has acted in an approach to show that they see the material as private.

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Extra care should be taken by the employers while considering for disciplining an agency provided employee for misconduct who is also disabled. Steps should be taken to determine if any link is there between the disability and the conduct and if it so then it should be ensured that whatever treatment is handed out it should be justified.

Acas code of practice on disciplinary and grievance procedures has to be followed strictly by the employers for the agency workers who have worked for more than twelve weeks with them. Those who are not following it might have to accept the risk of an increased compensation by up to 25% in case of an unfair dismissal of an employee. However, the Employment Appellate Tribunal also confirmed that the code will not apply to sacking of the employees for genuine reasons of absence due to sickness or ill-health. The code will be applied only when and if there exist an element of conduct that is culpable on the employee’s part.

Employers might be obligated for circuitous separation where specific treatment can be seen as a predictable practice, regardless of the possibility that it is connected just once in a while. Further, even when the treatment would make trouble for all workers, an employee can build up the specific burden required regarding a religious conviction if that worker would endure more because of their conviction. In the case of Pendleton v/s Derbyshire County Council, the claimant, an agency worker had to choose either her job or her marriage as per the conditions of the employer after her husband was convicted for downloading images which were of indecent nature. For this reason, she was put at a disadvantage particularly, given her belief in the sanctity of marriage as per Christianity, meaning she had suffered much more than others who are in a committed and loving relationship. Although the worker's action was a reaction to highly unusual and unforeseen circumstances, its own authentication was that in the same way it would respond, the circumstances should again arise, which was enough to be amounted to a "practice" for indirect discrimination purposes.

  1. Julian Cuppage, 'Recent Developments In UK Labour Law | Iglobal Law | Global Labour Law' (Igloballaw.com, 2016) accessed 9 March 2016.
  2. Legislative Changes - Forthcoming Legislation' (HR-Inform, 2016) accessed 9 March 2016.

On the basis of the ruling of Mummery LJ in James v/s Greenwich LBC [2008], and with reference to similar cases thereafter, some recent developments in the favour of the agency workers not only made the professional life of the workers working there easy but also made immigration to UK approachable. However, new issues are likely to develop on the occurrence of Brexit. So it can be concluded that the concerned ruling did throw a light on the development of the labour laws of UK till Brexit happened.

  1. Julian Cuppage, 'Recent Developments In UK Labour Law | Iglobal Law | Global Labour Law' (Igloballaw.com, 2016) accessed 9 March 2016.

Reference List

  • Autoclenz Ltd v Belcher [2011] The Supreme Court of United Kingdom (The Supreme Court of United Kingdom)
  • Bogg A, Sham Self-Employment In The Court Of Appeal (2nd edn, 2010)
  • Cuppage J, 'Recent Developments In UK Labour Law | Iglobal Law | Global Labour Law' (Igloballaw.com, 2016) accessed 9 March 2016
  • Grange v Abellio [2016] Employment Appeal Tribunal (Employment Appeal Tribunal)
  • Handley K, Sham Self-Employment (4th edn, 2011)
  • James v Greenwich London Borough Council [2008] England and Wales Court of Appeal (Civil Division) (England and Wales Court of Appeal (Civil Division)
  • 'Legislative Changes - Forthcoming Legislation' (HR-Inform, 2016) accessed 9 March 2016
  • 'National Minimum Wage And National Living Wage Rates - GOV.UK' (Gov.uk, 2016) accessed 9 March 2016

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