Last week saw employment lawyers getting very excited about the prospect of Rafa Benitez suing Liverpool Football Club for constructive dismissal after it became public that club owners Hicks and Gillett had approached Jurgen Klinsmann with a view to replacing Rafa. Constructive dismissal can be raised by an employee if they resign as a result of a fundamental breach of trust shown by the employer and do so soon after the breach. (Personally, I was far more excited about the fundamental breach in Liverpool’s defence that allowed Havant & Waterlooville to take the lead twice at Anfield last weekend!). Nevertheless, on the subject of constructive dismissal, the obvious setback for a potential claim is that Rafa, unsurprisingly, remains at the club. I can’t actually remember the last Premiership manager who actually resigned his position without leaving on the increasingly common “mutual consent” basis. Thus in all likelihood a claim was never a real possibility, much like Liverpool's title bid Rafa's left it a too late!
On to a slightly less glamorous, but far more relevant area of employment law to many in the North West, that being employment agencies. This is an area of law that has resulted in an increasing amount of litigation and uncertainly due mainly to the increase in EU migrants working in the primary and secondary sectors and the growth in agencies employing them.
Personally, I have worked for an agency during the summers whilst at University, at various manufacturing plants in North Wales, and to be fair found that I was well paid and provided with work on a daily basis. As an employee, therefore, I can say very little that is negative about such agencies. That in part, however, was because I did not have substantial sums deducted, without choice, from my weekly wages for rent (often provided in poor quality dorm-style accommodation), transport and other deemed compulsory expenses that are deducted from, primarily, foreign workers.
The good news is that from April 2008 all agency workers, regardless of nationality, have the right to withdraw from such ‘services’ provided by their employer without suffering any loss in pay or benefits, after giving a period of notice. This is part of the raft of changes to affect employment law coming into effect in 2008, but for me represents one of the fairest to hopefully ensure that migrant workers are treated identically as all UK born employees. This of course being one of the aims of the common market for labour; a goal that is currently at odds with this unjust levy, on mainly migrant workers, not to mention the exclusory impact on many areas of society.
The second employment agency related legal issue of recent weeks was the suspension of all cases in the Employment Tribunal concerning claims by agency employees, due to a potential change in the law on bringing a claim against the end employer (the Principal), for whom agency workers provide labour. After the decision of the Employment Tribunal in James v London Borough of Greenwich the law currently states that for an agency employee to be deemed to be employed by his principal as well as his agency (with whom he has his contract of employment), the 3 characteristics of a contract of employment must be present and such an arrangement is deemed to make sense in practice. The result of this being that principals will in almost all circumstances not be found to be the employers of agency staff. However, James is currently being appealed to Court of Appeal who may see fit to reverse this decision, perhaps in light of the Government’s perceived bolstering of migrant workers vulnerability, an approach which is evident from the new rules outlined above. This may give agency workers a choice of employers who they may bring a claim against and, therefore, a greater bargaining strength, in general, which is to be applauded. There is a danger in my mind, however, that by doing so agencies may be able to divert claims against them to their principal and may escape liability.
Consultation is now under way on new regulations that will afford more protection to agency employees, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007, which will hopefully bring greater clarity to the law and result in labour laws being the same for all UK tax payers, regardless of nationality.
Philip Gray
at Kirwans Solicitors