Employment Law Case Update - September 2015
Burnetts' employment law & HR team provides a summary of the latest employment law cases from including cases involving agency workers and the right to be accompanied.
Should Agency workers just be told of permanent posts or given an opportunity to apply?
The recent case of Coles v Ministry of Defence suggests that agency workers just need to be told that a permanent opportunity has become available and that the requirement for equal treatment does not prevent permanent employees from being treated more favourably than agency workers in a recruitment process.
Mr Coles was an agency worker supplied to the Defence Housing Executive (DHE), a part of the Ministry of Defence.
DHE decided to restructure. As part of that process, 530 employees were placed at risk of redundancy and put into a redeployment pool. The employees within the redeployment pool were given priority for any vacancies that arose at their existing grade.
In May 2013 a permanent post was advertised which was almost identical to the one that Mr Coles was doing for DHE on a temporary basis as an agency worker. The post was mentioned to the staff in the redeployment pool and was posted on an internal job site which all staff, including agency workers, had access to. Mr Coles did not apply but a lady in the redeployment pool did. The female applicant was appointed and the agency for which Mr Coles worked was told that his services would no longer be required.
Mr Coles fought against that decision saying that DHE had breached the Agency Worker Regulations (the “AWR”). In particular, he claimed that DHE had failed to allow him access to details of the vacancy and had denied him the opportunity to apply for the role. Accordingly, he argued that DHE had breached his rights to equal treatment.
The tribunal concluded that a vacancy had arisen about which Mr Coles was entitled to be informed. However, the tribunal felt that there was no right, under the AWR, to be considered for a vacancy on an equal footing with existing employees. The tribunal decided that there was nothing in the AWR which would prevent an employer from giving priority to its employees whose roles were at risk of redundancy over agency workers.
Mr Coles appealed. His main complaint was that the AWR gave him the right to be interviewed for the post without having to apply.
Unfortunately for Mr Coles, the Employment Appeal Tribunal (“the EAT”) disagreed. The EAT felt that the right to equal treatment under the AWR was limited to working hours and pay and that there was not a general right for temporary agency workers to be treated the same as an employee in a recruitment process.
The EAT decided that the words "the same opportunity as comparable workers" had been included within the AWR to ensure that the right to be informed of a vacancy was not devalued by, for example, the employer providing information about the vacancy at a later date or time such that the Agency Worker would be disadvantaged in the process. However, the EAT did not feel that there was anything in the AWR which meant that agency workers had to be given the same opportunities as other staff in terms of being given priority for posts or interview.
This case is an important reminder that the principle of equal treatment of agency workers cannot be interpreted as giving agency workers the same status as permanent employees. It protects their working hours and pay but the case confirms that, in a redundancy situation, the protection of permanent staff can be given priority.
More changes to the right to be accompanied?
We have seen a number of cases recently stressing that, provided the employee is suggesting either a trade union representative or a work colleague, the employee should be able to bring their choice of companion to disciplinary or grievance procedures however unpalatable that choice might be for the employer.
However, what happens when the employee isn’t a trade union member, doesn’t have any colleagues that he/she can bring, or the employee doesn’t want to involve any of his/her work colleagues. Can he/she bring someone else? The recent case of Stevens v University of Birmingham suggests that in certain circumstances the answer might be yes!
Professor Stevens, was jointly employed by the University of Birmingham (the “University”) and the Heart of England NHS Foundation Trust (the “HEFT”).
Professor Stevens was suspended from his duties at the University after allegations were made about misconduct during a number of clinical trials that he was responsible for. He was invited to an investigation meeting and told that he could be represented at the meeting by a trade union representative or another employee of the University. However, Professor Stevens’ wanted to bring Dr Palmer, a “professional” adviser from a medical advocacy organisation. The University refused insisting that it wasn’t required to allow Dr Palmer to attend under either the Acas code or its own procedures. Professor Stevens complained, however, that if he had been investigated by HEFT he would have been allowed to have Dr Palmer as his companion because the HEFT procedures allowed external representation.
Professor Stevens also complained that being restricted to work colleagues or trade union representation wasn’t fair because he wasn’t a union member and the only people that he knew at the University would be called as witnesses during the investigation. If he wasn’t allowed to bring Dr Palmer, who he suggested was equivalent to a trade union representative anyway, Professor Stevens argued that he would have to attend alone and that it wasn’t fair to put him in that position because of the potentially serious outcome of the process.
In a slightly unusual move, when the University refused to back down, Professor Stevens brought a civil case against the University arguing that he should be allowed to bring Dr Palmer to the investigation meeting and that the University would be breaching his contract if they failed to do allow him to do so.
The Judge held Professor Stevens didn’t have a contractual right, either express or implied, to have Dr Palmer with him as his companion. However, the Judge felt that the University's refusal to allow Dr Palmer to attend the investigation meeting was a breach of the implied term of mutual trust and confidence. Other witnesses had been allowed to bring companions that were neither trade union representatives nor work colleagues and the investigating officer had been allowed to have the assistance of an external technical adviser. The Judge felt that, in those circumstances, refusing to allow Dr Palmer to assist Professor Stevens had created "an inequality of arms" which was unfair.
These circumstances are probably not ones that employers will face often but the case is a good reminder that, rather than dismissing a request for alternative representation out of hand, an employer should always consider whether the request to be allowed to be accompanied by someone other than a trade union representative or a work colleague is reasonable and whether refusing to allow that alternative representation would have a detrimental impact on the fairness of the process. In fact, the updated Acas guidance on disciplinary and grievance procedures makes it clear that employers can allow workers to be accompanied by companions who are not trade union representatives or work colleagues should they wish to do so. Whilst the guidance makes it clear that allowing different representation, it is still a matter of discretion, employers are encouraged to give the issue more thought going forward.
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Published: Friday 28th August 2015