Employment News: agency workers, pregnancy, trade unions

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Read all about it – agency worker had right to be informed about vacancies, not to apply for them

It is perhaps surprising that nearly ten years after the Agency Workers Regulations (the Regulations) came into force, the extent of the protection they offer is still not clear. The latest appeal tribunal decision, Angard Staffing Solutions v Kocur, found that even though agency workers have the right to the same basic working and employment conditions as the hirer’s employees, they do not have to be treated on all fours with comparable employees in every respect.

Mr Kocur was a regular agency worker at Royal Mail, carrying out mail sorting duties. He complained that Royal Mail was breaching the Regulations in several respects. In particular, he claimed that by prioritising existing employees when filling sorting office vacancies, Royal Mail had breached his right as an agency worker to be informed about vacancies in the hirer organisation. In practice, agency workers could only apply for vacancies that Royal Mail could not fill from its existing employee population. He argued that the right to be informed in the Regulations was meaningless if it did not also confer a right to apply for vacancies.

The EAT, overturning the tribunal’s decision, dismissed his claim. The right to be informed about vacancies was a right to be given the same degree of information about them as employees, not a right to be considered for jobs on the same terms as employees. This reflects the fact that the relationship between hirer and agency worker is more flexible than that between employer and employee. The right to be provided with information was still valuable because it put agency workers in a better position to secure employment than the general public, who might never become aware of suitable vacancies.

For similar reasons, Royal Mail could continue to prioritise employees for overtime. Nothing in the Regulations requires agency workers to be given the same opportunity to work overtime as employees. All the Regulations require is that agency workers receive the same rate of pay for overtime and at the same time as employees.

Paved with good intentions – discrimination to move pregnant employee to back office role

Chief Constable of Devon and Cornwall Police v Town is a reminder that good intentions are not a defence to a pregnancy/ maternity discrimination claim or to a claim of indirect sex discrimination. Moving a pregnant employee to a non-operational role was a breach of the Equality Act, even though the police force argued that it provided a safe working environment and therefore could not be unfavourable treatment.

Mrs Town was a front line police officer. When she informed her line manager that she was pregnant, he undertook a risk-assessment and decided that she could remain within her existing team if she was assigned to restricted front line duties. She was happy with that outcome.

However, the police force’s policy was to move officers who had been placed on restricted duties for any reason to its Crime Management Hub, which involved being assigned to back-office duties. Mrs Town was transferred to the hub, despite the risk assessment and her own objection to being moved away from her team. The move had an impact on her health and she suffered depression in consequence. She brought successful tribunal claims of maternity and indirect sex discrimination.

The EAT dismissed the employer’s appeal. Although the force argued that it could not be unfavourable treatment to remove the claimant from the danger of being a front line officer while pregnant, that did not address Mrs Town’s complaint. Her complaint was that the move unnecessarily took her away from a supportive team doing work she enjoyed to a role that put her at risk of injury to her mental health. As such it was clearly unfavourable treatment and there was no dispute that it was her pregnancy that gave rise to the treatment.

It was no answer to the indirect sex discrimination claim that the policy would not disadvantage all women, only those who were pregnant or on restricted duties for other reasons. Indirect discrimination only requires that a member of the protected group be more likely to be disadvantaged than the comparator group. Given that being pregnant would result in being placed on restricted duties, women were clearly disproportionately likely to be transferred. It was irrelevant that some women would regard being transferred as an advantage; the point was that women were more likely to be susceptible to an enforced transfer than men in circumstances where the policy was not justified.
All in the mind – warning’s purpose was to prevent or deter trade union activities
A worker is entitled not to be subjected to a detriment for the sole or principal reason of preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or of penalising him for doing so. University College London v Brown examines how to decide what an employer’s “sole or principal reason” is in the context of disciplinary action.

University College London (UCL) reviewed its use of email distribution lists to try to reduce the number of potentially irrelevant emails being received by staff in its IT department (for example when someone “replied all” to a message). In future, it wanted to adopt two lists. One was a “mail all” list for management use. Other emails sent to that list were subject to moderation. The other “mail all” distribution list was operated on an “opt in” basis and could be used by anyone.

Mr Brown was a representative of UCL’s recognised union. He had previously been able to use the “mail all” distribution list to communicate with staff, including on issues of dispute between management and unions, and objected to not being able to do so in future without email moderation. He therefore created a new mailing list that included all staff in the IT department to use for trade union purposes, which he refused to delete when asked. He complained that by giving him an oral warning for failing to comply with a reasonable instruction, UCL subjected him to a detriment for the sole or main purpose of deterring him from taking part in trade union activities or penalising him for doing so.

The EAT upheld the tribunal’s finding that Mr Brown was undertaking protected trade union activities both when he created the email distribution list and when he subsequently refused to delete it. Recruiting and communicating with members are core trade union activities. Mr Brown objected to management steps to “get better control of” the email distribution system, including in relation to trade union information. Whether the employee’s actions amounted to trade union activities was an objective question for the tribunal.

The employer’s “sole or principal purpose” for the detrimental treatment is a subjective issue, involving an inquiry into what was in the mind of the employer at the time. Having heard the evidence, the tribunal was entitled to conclude that the employer’s “sole or principal purpose” in giving the warning was to discipline Mr Brown for what it had already decided were trade union activities. The tribunal’s finding of fact on that point was sufficient for Mr Brown to succeed in his claim.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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