Agency workers, pregnancy discrimination, evidence

21 March 2021

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases


Angard Staffing Solutions Ltd and another v Kocur and another

This case involved the Agency Workers Regulations 2010 (‘the Regulations’) which give agency workers the day-one right to receive information from the hiring company of any internal vacancies available. The Regulations also stipulate that agency workers must be given, after twelve weeks of work, the same basic working conditions as they would receive if they had been directly recruited by the hiring company.

Angard Staffing Solutions (‘Angard’) is the recruitment partner for Royal Mail Group and is wholly owned by the courier company, providing agency workers directly to it. In a previous case against Angard, there were several claimants, including Mr Kocur, who brought a claim concerning whether individuals assigned to Royal Mail could be considered agency workers. Following the ruling that confirmed that the claimants were agency workers, two of them then proceeded to bring claims against both Angard and Royal Mail over whether agency workers supplied by Angard have the legal protections under the Regulations and what those rights are.

These claims included that the Regulations had been breached in several ways, including that agency workers:

  • being informed that they were ineligible to apply for certain internal vacancies unless they were advertised externally
  • having to work longer shifts than directly hired employees
  • being offered overtime only if directly hired employees did not volunteer for it
  • having to wait to be given a pay rise for a longer period than directly hired staff.

With regards to vacancy information, the claimants had argued that the right to information must also amount to a right to apply for the vacancy. However, the employment appeal tribunal (EAT) held that the right for agency workers to be notified of job vacancies available at a host company is purely a right to information, which does not create an automatic right to be allowed to apply or be considered for the vacancy. The EAT went on to confirm that agency workers have the same right to receive information as those who have been directly recruited by the hiring company, and puts agency workers at an advantage when compared to external candidates who may or may not either receive the same level of information or hear of a vacancy in the first place.

Touching on the issue of shift lengths and overtime, the EAT explained that the right under the Regulations for agency workers to receive the same working conditions as direct recruits after twelve weeks of work includes working time aspects. However, this right does not give agency workers the same rights to shift lengths or pre-scheduling of breaks. In the same vein, there was no automatic equal right for agency workers to be granted the same overtime options as end-user staff.

Regarding pay, the EAT held that delaying agency workers’ pay was a potential breach of the Regulations as this relates to the right for agency workers to have the same working conditions as direct recruits – just as where shifts and overtime are concerned. However, it does not translate to the contents of agency workers’ payslips having to be the same as those for direct recruits.

 

Chief Constable of Devon & Cornwall Police v Town

The EAT has upheld a ruling that a pregnant police officer was discriminated against due to a policy that meant pregnant officers could be transferred to a desk-based role.

An employee of Devon and Cornwall Police (‘the Police’) was moved from her position on the response team to a desk-based role at the Police’s crime management hub after disclosure of her pregnancy. This was because of a policy which instructed that a person on ‘restricted duties’ for longer than two weeks would be transferred to the hub in the absence of ‘exceptional circumstances’.

Although the employee had outlined adjustments to her working day that could have allowed her to remain on the response team, such as interviewing suspects and reduced night shifts, none of these were considered. This was despite a risk assessment supporting her claims.

The employee felt forced to move to the hub and later brought two claims to the employment tribunal (ET), arguing that she had suffered pregnancy discrimination and indirect discrimination on the basis of her sex, contrary to sections 18 and 19 of the Equality Act 2010, respectively. The ET upheld both claims.

The ET judge ruled that although her pregnancy was not the main reason for the change in her role, the employee had received unfavourable treatment as a result. Despite the Police’s argument that all decisions made were due to ‘business need’, this did not escape the fact that the context of all discussions surrounding the employee’s situation was her pregnancy.

The ET went on to say that the decision to place the employee in the hub had also put her at a disadvantage due to her being pregnant. The ET outlined that pregnant women were particularly disadvantaged by the organisation’s policy and that it had failed to outline the ‘exceptional circumstances’ that would allow employees to avoid being placed in the hub.

Although the organisation did not contest that the employee’s treatment was due to her pregnancy, they appealed against both findings. They stated that the ET failed to consider that the purpose of moving the claimant to the hub was to protect her from danger whilst pregnant; they also argued that pregnancy was not a relevant protected characteristic for indirect discrimination and that the disadvantage suffered related to being pregnant, not being a woman.

The EAT dismissed the appeal on both grounds. Considering the organisation’s first argument, they found that it was clear that the claimant was not complaining about being removed from danger but about being transferred to the hub without consideration of alternative solutions, which had placed her at a disadvantage.

In relation to the respondent’s second point, the EAT found that it was not necessary that all women suffered from the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of a provision, criterion, or practice.

 

...does not translate to the contents of agency workers’ payslips having to be the same as those for direct recruits

 

Cumming v British Airways plc

The EAT has considered whether a policy that removed contracted rest days due to the taking up of parental leave was indirectly discriminatory against women.

Employees who qualify have a right to take up to eighteen weeks’ unpaid parental leave in total for the purposes of caring for a child, which is usually limited to four weeks per year. This applies equally to both male and female workers.

This case concerned an organisation that operated by offering ten paid rest days to staff. In line with the law, employees in question were also entitled to take unpaid parental leave. In 2010, a new policy was introduced that removed one paid rest day for every three unpaid parental leave days taken. The purpose behind the policy was to avoid cases of perceived unfairness; for example, it may be seen as unfair for an employee to take three weeks of parental leave in one month and then have the remaining ten days in the month as paid rest days.

The claimant in this case took a period of parental leave and, as a result, had one less paid rest day. She later argued that this placed her at a disadvantage, providing statistics which showed that more women in the organisation took parental leave than men.

The ET identified that the appropriate pool for comparison was female members of staff with childcare responsibilities and male colleagues in the same position. The ET held that as 100% of men and women who took this leave suffered the disadvantage specified, there was no particular disadvantage to women.

The ET therefore dismissed her claim. The claimant then appealed on the basis that women tend to bear the bulk of childcare responsibilities, meaning they were at a disadvantage. The respondent argued that this could not succeed as it was not the argument put to the ET.

The EAT took issue with the ET’s focus on men and women who took parental leave. This was because there was no evidence that all of them took the leave purely as a result of childcaring requirements. As outlined in the law, parental leave can be taken by all working parents and there is technically no need to evidence this.

Although there was no evidence to show that female employees did bear the bulk of additional childcare responsibilities, this was not necessary to establish that indirect discrimination had taken place. What was missing was specific evidence on the numbers of staff with childcare responsibilities in the group; there was currently no reason to think that the proportion of men with childcare responsibilities differed from the proportion of women. This issue has therefore been remitted back to the ET for further review. 


Featured in the April 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.