Two recent decisions affecting agency workers, and their status and rights, highlight potential loopholes in the current discrimination legislation.
The various strands of discrimination legislation protect employees from discrimination in "employment", and also protect "contract workers" in certain circumstances. In most agency scenarios, the agency worker will not be employed by either the employment business, or the end user; nor will they be a "contract worker" as defined in the legislation. As a result, in Muschett v HM Prison Service, the Court of Appeal found agency workers will not be protected from discrimination by the end user client.
In this particular case, Mr Muschett was supplied by Brook Street to the prison service to work in their laundry. He only worked there for 4 months before the prison service ended the arrangement. Mr Muschett made various claims including allegations of race, sex and religious discrimination against the prison service, but the Court of Appeal found he had no status to bring these claims as he was not protected by the legislation. It seems unlikely that Parliament would have intended that an agency worker in this scenario would have no protection.
It is unlikely, however, that this is the end of the story. The Temporary Agency Workers Directive specifies that agency workers should have the same level of protection as permanent employees in relation to, amongst other things, anti-discrimination legislation. It is therefore likely that this loophole will be closed sooner rather than later.
In the second case, May & Baker Limited v Okerago, the loophole relates to protecting co-workers from discrimination by agency workers. In this case an agency worker, who had been placed in the business for a considerable time, allegedly made a racist remark to a co-worker, employed by the end user business. The EAT found that the end user company was not liable for the comments made by the agency worker, as they neither employed the agency worker (as is required under the legislation to make the "employer" liable) nor could the agency worker have been acting as their agent, as they would have needed to have in some way authorised the act. It is possible that a similar claim could succeed if brought under the harassment provisions under the discrimination strands, but this incident pre-dated the changes to the definition of harassment that would make such a claim possible.
Both of these cases, although somewhat surprising and counter-intuitive, will be welcome news to employment businesses and their clients alike. It does, however, remain to be seen how long these cases will remain good law and full consideration should be given to the particular facts of any similar case before the risk of liability can be discounted.
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