If
recruitment firms took responsibility for their agency workers there would be
no need to go to tribunal when a client company restructures and leaves its
temporary workforce out in the cold
When
is a temp not a temp? When you end up in an employment tribunal, it would
appear.
The
recent ruling in Frank v Reuters has
received a great deal of attention, highlighting the need for organisations to
review the way in which they use agency workers. The anticipated EU Agency
Workers Directive will add to the pressure for change.
But
surely, the key to this problem lies in the forging of closer relationships
between the recruitment agency and the client.
Many
agencies, although sadly not all, want to take responsibility for our temps.
After all, we recruit them, we pay them, they are contracted to us, they are
how we make money.
The
difficulty arises as a result of the way employment tribunals are interpreting
the situation.
Frank
v Reuters was not the first case to decide the client was the employer, or
that, as in other cases, the agency and client were equally responsible. No
matter what we want to happen – and no agency wants its client to have to face
a tribunal as a result of using one of its temps – the decision as to who the
employer is, is largely out of our hands.
Clients
and agencies need to work together if they are to avoid going to tribunal in
the first place, which has to be our ultimate goal.
That
is not always as easy as it might sound.
I
was recently involved in a case with a temp who had been working in a client
organisation for six years – longer than any of their contracted employees.
This was complicated by the fact this temp was ‘TUPEd’ to us from the outgoing
agency.
We
were aware that the client, who was re-organising, would be relocating the
department outside of London. The client had no intention of taking the temp
with them, and we knew the temp would not want to go. The difficulty lay in the
fact the client had decided not to tell any employee about the move until the
last minute. We felt very strongly that the temp deserved at least six weeks’
notice of their contract ending, even though our contract with the client
allowed for only one week. They had after all been there for six years.
Our
client’s initial position was that it was our problem, not theirs, and on
paper, it probably was.
We
worked closely with the client over the months leading up to the relocation and
eventually agreed that we could give the temp the six weeks’ notice we felt
they were entitled to. There was no difference in cost to the client as the
temp continued to work as normal during the notice period. During that time, we
were able to place her in another assignment.
The
clients’ original position was that we were the employer and it was our
problem.
Careful
explanation of the fact that tribunals are choosing to interpret the facts
differently and our joint desire to treat the temp fairly meant that a
potentially litigious situation was avoided.
These
sorts of relationships between agencies and clients don’t happen overnight.
They need both parties to work together, to communicate regularly and
effectively and to share their responsibilities.
Good
indicators of those agencies who will be prepared to work in this way are those
who train their consultants to understand the legal pitfalls, who provide the
management expertise and back-up to support their clients in managing temps,
and who share information openly.
Some
run briefing sessions for their clients on changes in legislation and the
rights of temporary workers, which include open discussions about how they can
work effectively together in the future.
We
want organisations to be able to continue to enjoy the flexibility and
competitive edge the UK’s way of working with temps offers, without fear of
redress at tribunals.
We
can’t predict the way in which tribunals will decide individual cases, or who
the employer will be, but we can work together to avoid going to a tribunal in
the first place.
By
Heather Salway, HR director, Eden Brown
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