This month’s newsletter introduces the idea of the ‘joint employer’ following a landmark outsourcing case. This could be seen as another employment status headache for employers who adopt such practices. This case was heard before the Central Arbitration Committee, who hear most union recognition disputes.
Outsourcing is the practice of having certain jobs being done outside a company instead of having an internal department or employees handle them. Functions can be outsourced to either a company or an individual.
To look at this we need to go back to November 2017 when a decision was made by the CAC 2017 to bar the union, Independent Workers Union of Great Britain, (IWGB) from representing a group of workers who are outsourced by the University of London (UoL). The workers include security guards, post room workers, porters and receptionists who work directly for Cordant Security but UoL are the end client.
Outsourced staff highlighted the huge difference in conditions and pay they received as opposed to colleagues who are directly employed by the University. To gain better conditions, the outsourced workers wanted to collectively bargain through the IWGB directly with UoL. This was refused but the IWGB are now arguing that this is a breach of Article 11 of the European Convention of Human Rights – the right to form trade unions.
The IWGB appealed and the High Court granted judicial review against the decision from the CAC. For the University to recognise the IWGB for collective bargaining, the onus will be on the union to convince the court that the workers are employed by the company named on their pays-slips (Cordant Security) along with the end client of their labour (University of London).
This introduces the doctrine of ‘joint employment’. Joint employment already exists in the US to protect outsourced workers from being separated from the rest of the workforce. What will the implication of an IWGB win be?
The significant impact would be that the end client or employer would have to take a much more significant role in managing the outsourced worker. The end client could also be subject to potential claims by the outsourced worker, it could also mean fairer conditions for the outsourced staff which match those in place of those who do the same job internally.
Finally, if successful this could allow 3.3 million outsourced UK workers to collectively bargain with their indirect employers as well as their direct employers, bringing the joint employer concept to fruition in the UK. In many ways, it would make it very hard to distinguish between joint employment and agency staff, which was the subject of last week’s update.