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A great article from Dukesons about the dangers of thinking you don’t have employment exposure when using agencies to provide workers. This is very applicable for the Horticulture Industry, which has a heavy dependency on seasonal workers to plant or harvest crops.
The main effect of the changes for Agencies and Clients is that if an employee of the Agency raises a personal grievance against the Agency when the Employee has been on an assignment with a Client, either the employee or the Agency can join the Client as a party and the Client may have liability if it has caused or contributed to the grievance.
The Client would only have liability where it exercises or is entitled to exercise control or direction over the employee in the same way that the employer (Agency) would. Where that occurs, the Client is regarded as a controlling third party.
From the Agency’s point of view, it would be prudent to include a term in its contract with the Client whereby the Client agrees to indemnify the Agency against any liability that the Agency incurs as a result of the Client’s actions.
In some respects, it would be prudent for the Client to treat workers provided through the Agency as though they were the Client’s workers. Examples would include avoiding bullying, harassment, and unlawful discrimination.
Redundancy could also be an issue for the Client to the extent that it wants to terminate any contract with the Agency because the worker is no longer required (before the end of any period agreed with the Agency) and where that may result in termination of the worker’s employment with the Agency. In that case, even though the worker isn’t the Client’s employee, it would be prudent for the Client to consult with the worker in a timely fashion to advise why their services aren’t required.
Some real risk that historically could be avoided by using contractors.
Coming to you from 27 June 2020.
Lincoln Sharp - Thinking Forward 