30 red pepperoct/nov2007

No protection campaign focus

Agencyworkers, who make up a growing proportion ofthe UK’s workforce, have no rights againstunfairdismissal. Earlierthis year, despite promises ofprotective legislation, a government ministersabotaged a private member’s bill to give them such rights. DAVERENTONreports

One in 16 workers in Britain is now an agency worker. One in four of all agency workers in Europe are working in Britain. One agency, Reed, advertises an extraordinary 310,000 UK vacancies on its website. The major employers of agency workers include some of the largest private employers in Britain, such as Microsoft, Tesco and BT. Agency employment is profitable business. General Motors has outsourced large parts of its IT services in the UK to an employment agency, Electronic Data Systems. EDO boasts an annual turnover of $20 billion and profits of $150 million. For the workers employed in this way, though, the story is different. A TUC survey in February found that agency workers are paid one fifth less than the average British worker. Only a quarter have been employed for more than a year. Half of them would rather have a permanent job. A growing number of employment agencies have begun to recruit migrant labour. In an employment case that came before the courts in May, a number of Polish

In the1970s Jim Fitzpatrickwas a memberofthefirefighters’union and thefarleft. In March, as a governmentminister, hetalked out a privatemember’s bill to give agencyworkers employeerights

factory and food processing workers brought complaints against a company called the Consistent Group. The workers lived in accommodation provided by the agency. They travelled to work on transport provided by the agency. They were required to pay £56.40 a week for these services. They were required to work more than 48 hours a week. They were not allowed

holidays. When they joined a union, they were sacked. For several years, unions have campaigned for measures to equalise the pay and conditions of agency workers. Their model has been the legislation prohibiting discrimination against workers on part-time or temporary contracts. This campaign reached its highpoint in July 2004, in the aftermath of the invasion of Iraq, when an isolated Labour cabinet with an eye on the approaching general election accepted the need to legislate for agency workers as one of the terms of its ‘Warwick agreement’ with the unions. Under the same agreement, the cabinet also agreed a range of other policies, which would have a wide impact across industry. These included promises to protect pensions for workers moving from one employer to another, to promote sector forums to bring together unions and employers in areas of low-paid work and to limit an employer’s right to dismiss strikers in the first 12 weeks of their employment. For months, this pledge to protect agency workers remained on the table. The cabinet accepted a need to introduce new legislation, but did not act on it. Two things have changed in the past year. First, a series of court decisions have had the effect of reducing the rights of agency workers. Second, from a previous stance of delay in implementing the Warwick pledge, the government has

executed a reverse. Since the spring it has been actively blocking measures that might have done some good.

In the courts When a worker brings a case to an employment tribunal, one of the first questions facing the tribunal is the worker’s employment status. Everyone at work is a ‘worker’: that category is large enough to include directors of companies and people who run businesses where they are the sole worker. Only a smaller category of people, those who work under someone else’s control, are ‘employees’. Most important employment rights in Britain are restricted to employees. In general, the distinction makes good sense. If an employer who runs his own business goes bankrupt, and stops working for that company, it makes sense that he or she can’t sue the company for unfair dismissal. The employer could hardly sue himself. But if this distinction is applied to agency workers, it is not helpful to them. It is easy for an agency to draft a contract to the effect that a worker is not an employee but some kind of some self-employed contractor. While a permanent worker might protest, agency workers are by definition insecure and unlikely to insist on different contractual wording. Until December 2006, the position in law was that when an agency worker brought a claim, he or she could potentially identify either the agency or the company on whose premises the agency worker was employed (the end-user) as his or her employer. Since then, as a result of a oct/nov2007 red pepper

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decision given in the employment appeal tribunal, that position has now changed. Now, the presumption is that an agency worker has no employer and is not an employee. In exceptional circumstances, that presumption can be reversed. But in six appeal cases in England and Wales since December 2006, the agency worker has been found not to be an employee. The justification given by the judge was that agency workers are something less than a usual employee. ‘In a tripartite

unfair dismissal. In Britain, they are the only significant group of workers to be deprived of that right in this fashion. The judge ended by calling on parliament to legislate to protect agency workers from what even he described as the employers’ abuse of their economic power.

In parliament Parliament’s opportunity came in March of this year. Labour backbencher Paul Farrelly was successful in the private members’

LukeKnight

relationship of this kind,’ the judge held, ‘the end user is not paying directly for the work done by the worker, but rather for the services supplied by the agency.’ When an employer recruits an employee, in other words, usually the employer associates the employee with some skill or potential that is of value to the company. But when an employer asks an agency to provide workers there is a different relationship. It is a matter of indifference to him whether the agency supplies a worker who has been based in that same company for years or a trainee straight from school. The practical effect of this ruling has been almost the same as if agency workers had lost altogether the right to complain of

ballot, enabling him to move a bill of his choice. His bill to protect agency workers was supported by seven of the largest unions in the country. Their active support ensured that around 100 Labour MPs were in attendance for the bill’s second reading. Farrelly spoke the words necessary to placate New Labour: ‘This Bill is not about regulating flexibility out of the economy. It is not anti-business.’ Anne Snelgrove, Patricia Hewitt’s PPS, rose to confirm that legislation to protect agency workers had indeed been part of the Warwick agreement and to the best of her knowledge remained government policy. The second important contribution came from Jim Fitzpatrick, the Poplar MP who, in the 1970s, was a member of the fire

fighters’ union and the SWP. In March 2007, he was a minister at the Department of Trade and Industry. Fitzpatrick spoke at length. He described an ongoing government consultation, which has the ostensible purpose of protecting agency workers but whose main achievement if it results in legislation will be to prohibit the charging of fees at entertainers’ and models’ casting sessions. Even his fellow MPs could spot someone deliberately changing the point. Labour MPs rose, one after another to ask Fitzpatrick either to give a promise of legislation, or to sit down and enable a vote to take place. He refused. Eventually, the bill was timed out. No new bill will be introduced now until autumn 2008 at the earliest. Those calling for protection for agency workers have since largely turned their attention elsewhere: to Europe, where there have long been calls for an EU directive to protect temporary agency workers, and to local union organisation, where the general unions in particular have been unusually quick to recruit a generation of young migrant workers – as union members, as activists, and increasingly often as officials. Such work may be paying off. During the recent postal dispute, for example, there were reports that the Royal Mail was attempting to use agency workers to break strikes, and in Watford Polish agency workers refused to cross the picket lines. Yet while the full effect of these moves remains to be felt, the indifference of the courts and of the government has combined to create a strange and depressing situation. Normally, when a group of people in society is identified as being especially vulnerable, the response of all sensible people is to think of some measures to protect them. For agency workers, however, the future is the far more depressing scenario that employers remain free to sack them almost at whim. You could call it business as usual.