The Labour Court issued a decision last month confirming that an agency worker’s entitlement to the same terms and conditions of employment as those doing the same work in the hiring entity does not extend to a right to representation during a disciplinary hearing. The request to give agency workers access to direct employee representatives of the hiring entity should be refused. 

Background

A warehouse operative working at a Tesco distribution warehouse took a number of complaints against his employer, an employment agency, about various difficulties that the employee had with his employment. One of his complaints was that he was not entitled to bring a witness or representative of his choice with him to a disciplinary hearing, in line with custom and practice established for Tesco employees. As such, he claimed that the agency was breaching its obligations to him under the Protection of Employee (Temporary Agency) Workers Act 2012 (“the Act”) to provide him with the same basic terms and conditions as the direct Tesco employees.

The employment agency defended the case on two grounds:

1. The right to representation is not a basic term and condition of employment as provided for under the Act.

 The agency offered the employee access to representation under its disciplinary procedures in accordance with SI 146/2000. The employee was entitled to bring a fellow colleague or a union official to any meetings, but not a Tesco employee or representative.

Workplace Relations Commission

In a very unusual decision, the Workplace Relations Commission noted the disciplinary policy and confirmed that the employee was entitled to representation in the form of a colleague of his choice, or a trade union representative, but not someone from any other enterprise. An award of €2,500 was then made in favour of the employee. 

Labour Court

The employment agency appealed the decision to the Labour Court. It overturned the WRC’s decision and allowed the agency’s appeal.

The agency employee focused his appeal on the entitlement to the same basic terms and conditions as the direct Tesco employees, with whom he did the same work while working at the hirer’s (Tesco’s) premises.

Section 6 of the Act states as follows:

 “An agency worker shall, for the duration of [their] assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which [they] would be entitled if [they] were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that [they are] required to do during that assignment.” 

The Act also defines basic working and employment conditions to mean the terms and conditions of employment that are required to be set out in a contract of employment, and relate to pay, working time, rest periods, rest breaks, night work, overtime, annual leave and public holidays. The Act makes no reference to the requirement to offer agency workers the same access to the hirer’s disciplinary policy.

Further, the agency had permitted the employee to bring a colleague or trade union representative of his choice to the relevant investigative/disciplinary meetings in line with its disciplinary policy. As such, there was no requirement to offer the employee access to representation from the Tesco pool of employees who worked alongside the agency employees.

Conclusion 

While agency employees are entitled to the benefit of the same terms and conditions of employment as the direct employees of the hiring entity, that does not extend to the requirement to provide those employees with access to the hirer’s employee representatives. An agency worker’s colleagues are other agency workers, not the hirer’s employees for the purpose of representation, such as, in the context of a disciplinary meeting.
https://www.workplacerelations.ie/en/cases/2020/october/awd203.html