Monday, March 25, 2013

A modest but significant victory for workers

The decision of the Employment Tribunal in the case of UNISON v Capita (http://www.unison.org.uk/asppresspack/pressrelease_view.asp?id=3015) is very welcome - particularly to your blogger, who was a witness for UNISON in the case.

The tribunal judge upheld our complaint that the employer had failed to provide information about agency workers as required by law in a collective redundancy situation. He went on to make a "protective award" of 45 days pay in respect of the 30 workers who ended up being made redundant when Capita moved Lambeth Council's caller centre to Southampton.

The eventual value of this award isn't as important as the clarity of the decision itself. Of course it may be appealed (as I understand the earlier decision against Barnet Council may have been) but it is a robust and well argued decision, so I'll go out on a limb and say I expect it to stand - particularly in relation to its finding on liability.

Employment Judge Baron notes that employers may not like subsections (g), (h) and (i) of subsection 4 of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which were introduced, with effect from October 2011, by the Agency Workers Regulations 2010 - but they are the law (http://www.legislation.gov.uk/uksi/2010/93/schedule/2/paragraph/4/made).

In any collective redundancy situation (and also, as a result of a similar amendment to TUPE) in any transfer situation, the employer must disclose to the trade union details of all their agency workers. Critically, Employment Judge Baron observes that - whereas at the time Capita made the mistake in this case the legislation was fairly new - now "there can be no excuse" for employers who fail to maintain a central list of agency workers so as to be able to meet their legal duties in the event of a future collective redundancy consultation.

All activists can draw this tribunal decision to the attention of employers in order to put them on notice of the requirement to provide agency worker information in the event of a collective redundancy or transfer consultation (of course you can also try to get them to share the information regularly and routinely in any case!)

If the employers subsequently fail to comply with the law in this regard, the fact that the union has put them on notice of their obligation should help to persuade a tribunal to award closer to the maximum "protective award" of 90 days' pay.

This too can be pointed out to employers to force from them information about their use of agency workers (which we can then use to try to avert redundancies, both directly - by substituting redundant employees for agency workers - and, more importantly, indirectly, by putting pressure on employers to limit their use of agency staff).

Trade unionists ought not, of course, to be opposed to agency workers (and we are not) - but we are opposed to the deliberate segmentation of the labour market by employers seeking to "divide and rule" between a "flexible" periphery of insecure workers and a (slightly!) more secure "core" workforce. In essence, we should - and do - campaign for all workers to have the rights of employees.

However, at a time of job losses we rightly seek to minimise the use of agency workers where this will, in general or in particular, reduce the risk of redundancies. This tribunal decision is a small but important asset to us in that endeavour.

Regular readers of this blog (Sid and Doris Blogger) will understand that I am cheerful about this tribunal decision as I have been banging on about the subject for some time (http://jonrogers1963.blogspot.co.uk/2012/03/section-188-and-agency-workers.html?m=1).

If any trade unionist would like a copy of the tribunal decision, let me know.

Sent using BlackBerry® from Orange

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