Do temporary workers have the same employment rights as permanent employees, when it comes to disciplinary procedures? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
If someone is on a recruitment agency contract, do they have the same rights with regards to disciplinary and capability? My brother has just been let go from a temporary position – this in itself is not unusual as the position states it is ‘temporary’, but it is the way in which it was done by the agency.
He was called over to one of the recruiters at the end of a day’s work and told not to bother to come in anymore. This was in front of all of the other workers. When he asked why, the recruiter replied: “It is because of your illness record and days off.” As he has had zero illness days or any days off other than the normal since he started in September, he questioned this. The reply he got was, “well, it must be your performance then.”
I have been a manager for seven years and although have never had to deal with employment law and agency workers, I have never myself heard of a termination of contract ever being dealt with in this way. It makes me angry that the recruitment consultant was so arrogant as to embarrass someone like this.
I intend to have a chat with the manager of the recruitment consultancy, not to get this job re-instated, but to discuss the best practices of the consultancy with them and want to have my facts straight first.
Do agency workers have to have the same performance management as full-time staff if this is the reason for termination of employment, ie. capability interviews and disciplinary procedures? And are they allowed to get away with terminating someone’s contract in such a disgraceful way?
Legal advice:
Esther Smith, partner, Thomas Eggar
Agency workers do have employment rights but the issue is determining who their employer is. Generally speaking, most agency workers are employed by the agency and then provide services through the agency to the company. Therefore, if it is the company / end user who has treated him badly he may have no recourse, but if it is the agency that has done anything to him then he may well have a cause of action.
However, it is also worth pointing out that for most purposes you need a year’s service to have most employment rights (other than discrimination) so even if the relationship is with the agency, he may be unprotected if he has not been with them for a year.
If there is some element of discrimination here, your brother may have a claim against both the agency and the company / end user, but from the information provided this does not appear to be the case.
I am afraid that at the end of the day bad things happen to people at work every day, and sometimes you just have to take it on the chin and move on. However, that shouldn’t stop you or your brother contacting the individuals involved and making your thoughts known.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
To some extent the answer depends on what you mean by ‘recruitment agency contract’, but either way you cannot get away from the fact that employers often use agency workers for their flexibility, so that they are not bound by the same rules and procedures that apply to permanent staff.
The rights agency workers have depend upon what is in their contractual arrangements. In cases where the worker is employed by the agency and hired out to end-users there is no contract directly between an agency worker and the end-user.
The contract is between the end-user and the agency. Thus the end-user would seek to differentiate agency staff from its employees and would not give the agency worker access to employment benefits (including such things as disciplinary and grievance procedures).
However, sometimes when talking about ‘agency workers’ we mean a person supplied by an agency to work somewhere but not employed either by the agency or the end-user.
In these cases, there may well be a contract between the worker and the end-user but this would be a contract for services. Again I would expect that to be quite different from an employment contract.
Finally, you may have an agency supplied worker who does become employed by the end-user, albeit for a limited period of time. One hopes such staff are treated as well as permanent employees but that’s not always the case. Again you have to look at what is in the contract.
Martin Brewer can be contacted at: martin.brewer@mills-reeve.com
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