Article
One: Employment and the Law – Recent Developments by Louise
Fernandes
Employment law developments are showing little sign of slowing down this month. Louise Fernandes of Field Fisher Waterhouse LLP outlines the key developments for the recruitment sector below.
Agency workers – back to normal?
In Craigie v London Borough of Haringey, the Employment Appeal Tribunal (EAT) examined a topic that has arisen frequently in recent months; the status of agency workers.
Mr Craigie, an agency worker, brought claims for unfair dismissal and breach of contract against the "end-user", the council. The EAT confirmed that there was no implied contract of employment between him and the end user, finding that there was no need to imply such a contract.
This case is another example of the law on agency workers returning to ‘normal’ following earlier decisions of the Court of Appeal. To recap, the issues at stake are the rights of an agency worker and the obligations of an "end user" in a tripartite arrangement, where an end user contracts with an agency for the supply of a worker. The paper relationship typically provides only two sides of the triangle: the contract between the end user and the agency, and the contract between the agency and the worker (which usually states that it is not an employment contract). There is usually no written contract between the worker and the end user. Problems arise for worker and end user when the relationship comes to an end: if the worker can establish an implied contract of employment with the end user, the end user could be liable for employment claims such as unfair dismissal.
Whilst earlier cases were basically in favour of implying a contract with the end user, James v Greenwich Council and now Craigie see the pendulum swing back in favour of only implying such a contract in extreme cases. Where the agency arrangements are genuine and the actual relationship is consistent with them, these cases found that it was not necessary to imply any other contract and that the length of time that the relationship had been ongoing did not in itself justify such implication.
For end users, this shift in the case law is welcome, providing more certainty over the status of temporary workers taken on through agencies and less risk where such arrangements are terminated. For workers, however, there is now less prospect of success in trying to claim employment rights against an end user. Both James and Craigie call for a review of the situation with the possible introduction of new legislation - so watch this space!
Government fails to implement the Equal Treatment Directive
The High Court has confirmed that UK sex discrimination legislation does not properly implement the Equal Treatment Amendment Directive (the Directive).
The Sex Discrimination Act 1975 (the Act) was amended in October 2005 by the Employment Equality (Sex Discrimination) Regulations 2005 (the Regulations). The amendments introduced new provisions, outlawing harassment on the grounds of sex and sexual harassment, and discrimination on the grounds of pregnancy and maternity leave.
The Equal Opportunities Commission (EOC), however, recently successfully challenged the way in which the Government implemented the Directive in the form of the Regulations. The High Court has now confirmed that the Act should be amended in a number of ways, including to:
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widen the current provisions relating to harassment;
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enable a woman to make a complaint about harassment when the conduct complained of is directed at, and relates to the sex of, a third party; and
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clarify that employers can be liable for harassment if they fail to prevent harassment by others e.g. clients/suppliers.
Dispute resolution review
The DTI has published an independent review of employment dispute resolution, which calls for the complete repeal of the statutory disciplinary and grievance procedures introduced in 2004.
The review notes that the current statutory procedures carry an unnecessarily high administrative burden for both employers and employees, and have had unintended negative consequences which outweigh their benefits.
In response to the review, the DTI has issued a consultation document, seeking views on a wide range of issues arising from the recommendations. The closing date for responses is 20 June.
National Minimum Wage rise
The DTI has announced that the National Minimum Wage rates are due to rise from 1 October 2007. For workers aged 22 and over, the rate will increase from £5.35 per hour to £5.52. For workers aged 18-21, the rate will rise from £4.45 to £4.60 and for workers aged 16-17, the rate will rise from £3.30 to £3.40. More than a million workers are due to benefit from the rise.
Louise Fernandes is the Professional Support Lawyer in the Employment Department at Field Fisher Waterhouse LLP and can be contacted at
louise.fernandes@ffw.com.
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