The need for reform in this area has been highlighted by the Northern Ireland case of Bohill v Police Service of Northern Ireland
and the case in Great Britain of Muschett v-HM Prison Service (HMPS)
. These gaps in protection have the potential to have a particular impact on migrant workers working in Northern Ireland; many of whom may have entered into arrangements with agencies similar to Mr Bohill or Mr Muschett.
In particular, in the Northern Ireland case of Bohill –v- Police Service of Northern Ireland (PSNI), the NI Court of Appeal raised concerns that potential employees who seek work through an agency, due to type of arrangements that they have an agency, can be deprived of important protections under the equality legislation. Importantly, the NI Court of Appeal also highlighted this was an area of law likely to benefit from law reform.
In that case, Mr Bohill was a former police officer who applied to Grafton Recruitment Services (Grafton) to work as an investigator with the PSNI. Mr Bohill’s name was included in lists of potential temporary workers compiled by Grafton and forwarded to the PSNI on some 13 occasions, but upon none of these occasions was Mr Bohill recruited as a temporary worker.
Mr Bohill lodged a discrimination complaint against the PSNI alleging that his failure to secure such employment was as a result of unlawful discrimination on the grounds of religious belief/perceived political opinion, contrary to the Fair Employment and Treatment (NI) Order 1998 (FETO 1998). The tribunal was of the view that it did not have the jurisdiction to hear his substantive claim. Mr Bohill appealed this decision to the Court of Appeal in Northern Ireland.
The Court of Appeal confirmed that, in the absence of a contract with either Grafton or the PSNI, the Tribunal did not have the jurisdiction to hear his case. It stated that ‘in our view the inability of the appellant to establish that he is seeking an employment relationship with PSNI or that he is in such a relationship with Grafton and to bring himself within the definition ‘employee’ contained within Article 2 of the 1998 Order is fatal to this appeal’.
The Court of Appeal further stated that “we have arrived at this conclusion with some degree of anxiety since, in doing so, the apprehension expressed by Smith LJ that a gap might exist in the remedies available to workers in the appellant’s position would appear to be confirmed”.
Importantly, the Court of Appeal concluded that the case “does seem to illustrate how an agency arrangement may deprive potential employees of important protections against discrimination.”
It also indicated that “Northern Ireland enjoys a well deserved reputation for the early development and quality of its anti-discrimination laws and this is an area that might well benefit from the attention of the section of the office of OFMDFM concerned with legislative reform.”
It is also of note that the NI Court of Appeal indicated that “there is no doubt that this type of agency arrangement has become much more prevalent over recent years and it would appear that the UK economy uses agency provided workers to a much greater extent than those of most other EU States.”
Importantly, whilst Mr Bohill’s case concerned an allegation of unlawful discrimination on the grounds of religious belief and/or perceived political opinion, such gaps in protection similarly exist in relation to race and other equality grounds.
Of further note is the Court of Appeal in Great Britain’s decision in the case of Muschett v HM Prison Service (HMPS) in 2010. This case also highlighted a situation where an agency worker, due to the type of arrangements that he had with an agency, was deprived of protection under the equality legislation.
In that case, Mr Muschett had signed a contract with the Brook Street Employment Agency who had placed him as an agency worker with HMPS. Mr Muschett claimed compensation from HMPS for unfair dismissal, wrongful dismissal, as well as sex, racial and religious discrimination.
The Employment Appeal Tribunal (EAT) agreed with the employment judge’s finding that he was not a contract worker as he was not employed by the agency; and therefore was not covered by the race equality legislation and similar provisions in the other discrimination legislation.
Mr Muschett was not given leave to appeal to the Court of Appeal on the EAT’s finding that he was not employed by the agency. He was, however, given leave to appeal to the Court of Appeal on whether a contract of employment could be implied between Mr Muschett and HMPS or whether he was employed under a contract for services with HMPS. The Court of Appeal held that, as he was not an employee under a contract of service nor was he under a contract for services with HMPS, he had no protection under the equality legislation.
In addition, whilst the Muschett case concerned sex, race and religious discrimination, it is clear that, like the Bohill case, gaps in legislative protection exist for temporary agency workers alleging discrimination across all equality grounds.
It is important to stress that agency workers who are contract workers and are employed by agencies will have protection under equality legislation. In the particular circumstances of their cases, neither Mr Bohill or Mr Muschett were deemed by the courts to be contract workers and therefore fell outside the scope of the equality legislation.
It is also of note that whilst the Agency Workers Regulations (NI) 2011
have resulted in additional equal treatment protection for agency workers, we are of the view that they do not address the gaps in legislative protection as highlighted in the Bohill and Muschett cases.
We further recommend that the Department for Employment and Learning also considers these issues when reviewing the impact of the Agency Workers Regulations (NI) 2011. We also recommend steps are taken to address similar gaps in protection relating to other equality grounds.