Working together is the best way to keep out of the courts

Previous Article Next Article Working together is the best way to keep out of the courtsOn 8 Jul 2003 in Personnel Today Related posts:No related photos. Comments are closed. Ifrecruitment firms took responsibility for their agency workers there would beno need to go to tribunal when a client company restructures and leaves itstemporary workforce out in the coldWhenis a temp not a temp? When you end up in an employment tribunal, it wouldappear.Therecent ruling in Frank v Reuters  hasreceived a great deal of attention, highlighting the need for organisations toreview the way in which they use agency workers. The anticipated EU AgencyWorkers Directive will add to the pressure for change.Butsurely, the key to this problem lies in the forging of closer relationshipsbetween the recruitment agency and the client.Manyagencies, 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 arehow we make money.Thedifficulty arises as a result of the way employment tribunals are interpretingthe situation. Frankv Reuters was not the first case to decide the client was the employer, orthat, as in other cases, the agency and client were equally responsible. Nomatter what we want to happen – and no agency wants its client to have to facea tribunal as a result of using one of its temps – the decision as to who theemployer is, is largely out of our hands.Clientsand agencies need to work together if they are to avoid going to tribunal inthe first place, which has to be our ultimate goal. Thatis not always as easy as it might sound. Iwas recently involved in a case with a temp who had been working in a clientorganisation for six years – longer than any of their contracted employees.This was complicated by the fact this temp was ‘TUPEd’ to us from the outgoingagency. Wewere aware that the client, who was re-organising, would be relocating thedepartment outside of London. The client had no intention of taking the tempwith them, and we knew the temp would not want to go. The difficulty lay in thefact the client had decided not to tell any employee about the move until thelast minute. We felt very strongly that the temp deserved at least six weeks’notice of their contract ending, even though our contract with the clientallowed for only one week. They had after all been there for six years.Ourclient’s initial position was that it was our problem, not theirs, and onpaper, it probably was. Weworked closely with the client over the months leading up to the relocation andeventually agreed that we could give the temp the six weeks’ notice we feltthey were entitled to. There was no difference in cost to the client as thetemp continued to work as normal during the notice period. During that time, wewere able to place her in another assignment.Theclients’ original position was that we were the employer and it was ourproblem. Carefulexplanation of the fact that tribunals are choosing to interpret the factsdifferently and our joint desire to treat the temp fairly meant that apotentially litigious situation was avoided.Thesesorts of relationships between agencies and clients don’t happen overnight.They need both parties to work together, to communicate regularly andeffectively and to share their responsibilities. Goodindicators of those agencies who will be prepared to work in this way are thosewho train their consultants to understand the legal pitfalls, who provide themanagement expertise and back-up to support their clients in managing temps,and who share information openly. Somerun briefing sessions for their clients on changes in legislation and therights of temporary workers, which include open discussions about how they canwork effectively together in the future.Wewant organisations to be able to continue to enjoy the flexibility andcompetitive edge the UK’s way of working with temps offers, without fear ofredress at tribunals.Wecan’t predict the way in which tribunals will decide individual cases, or whothe employer will be, but we can work together to avoid going to a tribunal inthe first place.ByHeather Salway, HR director, Eden Brown read more