Yesterday evening, I went to a talk given by an employment lawyer. He can be no more certain of the future than any of us but he was prepared to speculate on the sort of cases which might come up over the next couple of years.
One such issue is the discrepancy in pay and conditions between agency staff and permanent employees working on the same site. Agency staff are not covered by the law that gives workers on temporary contracts the right to the same pay and benefits as permanent staff. Their contract is with the agency that hires them, which then has its contract with the employer. However, two recent developments could open the way for a legal challenge.
Firstly, in a couple of recent cases, the Court of Appeal has ruled that agency workers who had been working for the same organisation for a long period of time could be deemed to be employees. (Franks v Reuters 2003, Dacas v Brook Street 2004) Other judgements by the Employment Appeal Tribunal seem to contradict these rulings, leaving the current legal position unclear.
Secondly, the composition of the agency workforce, especially for industrial work, has completely changed. In some parts of the UK, almost all industrial agency staff are from a single country. The country of origin varies from region to region. In some places most will be from Poland, in others Lithuania or Latvia. There are also local concentrations of Portuguese and East Timorese. The agencies that recruit the staff tend to do so from countries where they have reliable contacts. Consequently, in any factory, farm or cleaning company, most agency staff will be from the same country. This could leave employers open to claims of indirect racial discrimination.
The Commission for Racial Equality gives the following guidelines covering indirect discrimination on grounds of race, ethnic or national origin:
This occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race and is applied equally to everyone:
- puts or would put people of the same race or ethnic or national origins at a particular disadvantage when compared with others; and
- puts a person of that race or ethnic or national origin at that disadvantage; and
- cannot be shown to be a proportionate means of achieving a legitimate aim.
Companies would probably try and argue that employing Polish workers counts as proportional means but who knows how the courts might see it. Where you have a factory full of British people earning higher wages and with better benefits than the Poles working next to them, the Poles are certainly at a disadvantage, whatever the reason. The argument that the Poles are not employees and are therefore not covered by the law might not stand up, given the above rulings on employment status for agency staff.
While they might have been grateful and compliant when they first arrived, there are signs that eastern European workers are becoming more militant. In December, the Guardian reported on the rise in trade union activity among Polish workers and the co-operation between British and Polish unions:
Ross Murdoch, a GMB project coordinator, said that when a public meeting for Polish workers was held a few weeks ago in Southampton, “we were expecting around 20 to come and were amazed when 130 arrived”. The Polish branch was swiftly formed and similar projects are planned for Swindon, Slough and Brighton, where there are large pockets of Polish workers.
The experience has been mirrored around Britain. Groups in Bristol, London and East Anglia have contacted unions for advice and help. In Glasgow the Transport and General Workers’ Union set up a Polish branch after holding a meeting attended by 150 Polish workers. “We have recruited several thousand into the union nationally,” said Andrew Brady of the T&G in Glasgow. He described the influx of Poles into the union movement as “a shot in the arm”.
Links have also been established with Polish unions, and the North West TUC brought over a national organiser from Solidarnosc to give advice on employment rights. The TUC now attends job fairs in Warsaw, and many unions have Polish-language websites and application forms. Discussions are also under way about whether to allow Poles to join unions before they arrive in Britain and pay dues when they have started work.
East European workers’ awareness of employment rights, disatisfaction with their conditions and willingness to organise are increasing. It is probable that, sooner or later, someone will bring a legal challenge demanding parity with British workers.
If such a claim were to be successful, it would have far-reaching implications. Depending on whose arguments you believe, Britain has 600,000 Polish workers because Britain doesn’t have enough workers with the right skills to do the jobs they do, because British people are too lazy to do these jobs and would sooner live on benefit or because Poles will work for wages that British people consider too low.
Bringing Polish workers’ wages up to the level of their British counterparts would test these assumptions. If Polish workers are only employed because they are cheap, would companies start recruiting more local people if they had to pay full rates? Would local people flock to do these jobs at a higher rate, or would many still shun them, leaving the Poles to make up the shortfall?
Whatever happens, if employers have to pay full whack to polish workers, the agencies will almost certainly go bust as their profit margins would be squeezed. Some employers might go out of business too and others would pass on the costs to the consumer. We would all end up paying higher prices, especially for eating out, hotel rooms and packaged food.
It might never happen. The courts might decide that agency staff are not covered by the law on indirect discrimination. Workers from eastern Europe and elsewhere might decide that they don’t want to risk losing their jobs by upsetting the current arrangements. I wouldn’t bank on it though. Migrant workers are getting more militant and British courts make some odd rulings, especially on employment law. This could get very interesting.