Christmas 2016 will see an estimated 340,000 UK workers employed for temporary work via agency contracts which provide only minimal legal protection against unfair treatment in the workplace.

This revelation is part of the research from a new think-tank report conducted by the UK Resolution Foundation that reveals details of its eighteen-month investigation into how British agency workers are treated. Findings of the report show that many agency-contracted workers are shockingly underpaid compared to their non-agency colleagues despite performing the same duties.

The report entitled Secret Agents: agency workers in the new world of work intends to create awareness of the discriminatory nature of non-agency work in a manner similar to how other recent reports have brought attention to issues that negatively affect workers who are employed via zero-hours contracts. There is considerable overlap between the two work forms, as14% of agency workers are also employed via zero-hour contractual agreements.

The Resolution Foundation’s senior policy analyst, Lindsay Judge, has noted how addressing agency issues is often neglected: “While zero-hours contracts are often in the news, agency workers are the ‘forgotten face’ of the modern workforce, despite being just as prevalent across the labour market.”

Agency workers now account for a very significant volume of the UK workforce. In London nearly 20% of the city’s workforce are on non-agency contracts, and many of these workers lack the employment rights non-agency staff are accustomed to, such as sick payments and parental leave.

The report also reveals that workers employed via agencies are from a much broader range of age groups than the 18-30 bracket that agencies are often believed to employ.

Lindsay Judge feels “it is important that the discussion of the non-traditional parts of work in modern Britain consider the relatively lower pay that agency workers receive compared to identical employees in similar jobs.”

This view is supported by Frances O’Grady, the general secretary of TUC, who states that “agency workers are often paid less than their permanent colleagues, even when they do exactly the same job […] We need the government to toughen the law to create a level playing field for agency workers.”

The report also highlights how agency contracts are often used for long-term rather than short employment, contrary to past reports of how such contracts are usually temporary and short-term.

The Resolution Foundation has spoken ahead of the report’s publication, claiming the organization is not biased towards the nature of agency work, and fully recognises how there is often a need for such contracts as workers often search for flexible employment to support their lifestyle arrangements.

However, the report does draw attention to the fact that a considerable number of workers on agency contracts are not choosing to work this way, and that 60% of workers would rather be fully employed if given the choice.

In 2011 approximately 200,000 UK workers were on agency contracts that existed across a range of industries, from office temps to hospital nurses. This figure has more than quadrupled to around 865,000 since then. The Resolution Foundation’s report estimates this number will increase to more than a million by 2020.

The largest sector for agency employment is the health and social care sector, which has a staggering 18% of the UK’s agency staff.

The report shows that despite more men being employed via agency work (54%), women account for 85% of the workers employed during the recorded increase that has occurred in the UK over the past five years,

An imbalance in the number of ethnic workers on agency contracts is also evident in the report’s findings, as 20% of agency workers are non-white despite accounting for only 2.7% of the workforce.

There has been a surge in agency related case coming to tribunal in recent months, including high profile grievances involving household names like Deliveroo, Uber and Sports Direct. These cases all involved grievances relating to the unfair treatment of staff.

One area of concern regarding agency contracts is the legal loophole often referred to as the ‘Swedish derogation’. This allows employers to pay temp workers less than their fully-employed peers as long as the agency is paying them continuously for a period of at least four weeks during times when the business is unable to find work for those workers.

The globally renowned Korean business Dongbu Daewoo Electronics has been taken to tribunal by a female employee who claims she was subjected to acts of sex and race discrimination.

Mrs Misook McDonald, who is representing herself at tribunal, was allegedly demoted from her job as a financial manager because she did not bow to her boss Mr Ho Seung Yoo, who is employed as chief financial officer.

Mrs McDonald claims she was called into the director’s office at the Berkshire branch of the electronics giant to be reprimanded by Mr Yoo for her ‘disrespect’ at not bowing to him at the beginning and end of each day. She was later demoted from her position as financial manager.

Mrs McDonald also claims that on another occasion she was told to prepare coffee for a number of guests despite this task not being part of her daily duties. When she refused Mr Yoo allegedly responded with the discriminatory question “Isn’t that what female workers should do?”

Both Mr Yoo and Dongbu Daewoo Electronics deny all allegations.

A case of this kind is of particular interest as there are elements of cultural contrast involved, specifically in regard to British and Korean attitudes. In the latter country bowing is generally considered an act of respect comparable to a handshake or verbal greeting, but such a gesture is not familiar to the British workplace.

Although Dongbu Daewoo Electronics is a Korean business, a form of greeting synonymous with the culture of that nation does is not required to translate to its offices in another nation, especially if the employees are not citizens of that nation. Mrs McDonald is of mixed race, with a Scottish father and Korean mother.

The tribunal heard that she was made to feel an outcast at the Berkshire offices and did not receive a warning prior to being demoted to position of administrator. Mrs McDonald stated at tribunal that she believes her employers felt they could behave this way because she is an Asian female:

“I know if I had been an older British white Caucasian male, Mr Yoo would have seen me very differently and would not dare to push me around so easily […] “I expressed that I felt discriminated just because I am viewed as a Korean female and younger, hence lower in status that I can be looked down upon and pushed aside”.

Her allegations of race discrimination are rooted in her assertion that she was demoted so another employee could take her place. She originally received a lot of praise from her employers as she was the only bilingual employee in the office; speaking both English and Korean. This changed when a Korean national with stronger language abilities was employed and she was given the lower admin role.

“I know he was glad to utilise me when I was the only bi-lingual person but when a better speaking Korean employee came along, I was not his preferred choice. I am also not considered ‘pure’ as my father is English.”

Mrs McDonald claims she did not bow to Mr Yoo because she wanted to avoid him and thus stop further harassment. The alleged discrimination eventually led Mrs McDonald to take leave from work due to stress.

She informed her managing director Mr Chong Park about what had happened, but a private investigation into the the matter did not find grounds to support her grievance. The mediator employed for the investigation stated there was “no reason to favour one account over another” since Mr Yoo denies all the allegations, claiming he was taken by surprise at the claims: “Mrs McDonald never complained about being called into my office whilst at work until she lodged her grievance.”

Mr Yoo also rejects any responsibility for sexist or racist behaviour. In regards to Mrs McDonald’s claim of discrimination for refusing to bow he said the following:

“Bowing is considered a custom in Korea but nobody in our UK office is required to bow. Some of our Korean staff choose to bow but as I say nobody must bow, it is entirely voluntary.”

Speaking at tribunal the company’s Managing Director, Mr Park, also denied that employees were expected to bow to their manager. However, he did claim that he initially had some concern at Mr Yoo’s conduct when the chief financial officer first came from South Korea to Berkshire to begin a four-year contract in 2015, stating that he wondered “is he normal or is he mental?” Such a reaction from Mr Park suggests there was either a degree of culture clash occurring, or that Mr Yoo’s conduct in the workplace has been at least been unconventional at times.

 

As branch director, Mr Park confirmed his support for Mr Yoo’s decision to implement a change of role for Mrs McDonald, claiming the alteration was largely in job title only and was due to a need to prevent redundancy across the office: “Mr Yoo designed the presentation which included the job chart to show the CEO and HQ that we had met their request. Nobody’s job role actually changed at that stage.”

Mr Yoo denies that Mrs McDonald was regularly given duties beneath her position, and says that his request for coffee was due to her past actions suggesting she would not object to it:

“When initially Mrs McDonald joined our company, every morning she brought me a cup of coffee or tea, every single morning. […] It was quite strange to me […] however, I just accepted it”.

He claims her generous attitude convinced him she would be comfortable performing a similar action for others and that he reluctantly requested this: “I asked her to make some coffee for my guests, I was really sorry for asking that of her at the time.”

The tribunal continues.

An announcement by The Trade Unions Congress (TUC) has detailed how the number of UK workers actively reporting acts of discrimination and unfair dismissal in the workplace has dropped by a large margin since it was ruled in 2013 that claimants must pay mandatory tribunal fees. The statistics produced by TUC shows the total number of claimants has dropped to an average of 7,000 a month compared to the monthly average of 16,000 recorded beforehand the change just three years ago.

Although many legal observers fully expected to see a large drop in claims occurring, the scale of the decrease is far larger than was generally expected and has led to further calls by TUC to axe the fee system.

Ahead of the Autumn Statement, TUC’s General Secretary Frances O’Grady has derided how the need for payment has shortchanged workers. She remarked that workers are “being priced out of justice” and she is encouraging Theresa May to follow through on her promise to govern Britain under a fair employment law system that will continue throughout her timr as Prime Minister. O’Grady was quoted as calling the fee system May’s: “first real practical test’ and that she should ‘scrap those fees and ensure that all workers have access to justice.”

The TUC is not the only organisation expressing outrage at the current fee system. As recently as June 2016 the Justice Select Committee spoke of how negotiation is desperately needed to establish a fair financial solution to the employment tribunals fee situation . Finding such a solution is long overdue, and in response to the committee, TUC issued a reminder that the Justice Select Committee were due to has still not issued their report into the effect of tribunal fees which was due by the end of 2015. The committee responded by stating that the report will be produced soon.

 The current fee system dictates that all claimants, even those on minimum wage, have to pay the required costs as long as close family member of theirs possesses a savings account totaling at least £3,000. This payment is a mandatory requirement regardless of the required regardless of the Help with Fees plan that the government put in place in 2015 in a bid to reduce the cost for claimants with lower incomes.

Frances O’Grady asserts that the fee system constitutes clear evidence that UK workers are being oppressed: “These fees of up to £1,200, even if you’re on the minimum wage, are pricing out thousands each month from pursuing cases.”

The Ministry of Justice has challenged TUC’s report, reminding them that the fee system was implemented as a response against the £71 costs that tribunal cases were costing the UK taxpayer each year, many of which were regularly proven to be fraudulent.

The figures from TUC detail the extent of the decline since fees were originally introduced in 2013. Tribunal cases involving acts of sex discrimination have dropped 71%, and race discrimination reports have gone down 58%. Additionally, reports of disability discrimination have dropped 54%, and cases on the grounds of unfair dismissal have seen a 73% drop at tribunal.

These declines are certainly not due to improvements in the UK workplace. It’s the result of victims lacking the financial support to speak out; an issue that urgently needs addressing.

In a case that broke new legal ground, a former company director has been granted permission to pursue a wrongful dismissal claim in conjunction with unfair prejudice proceedings under Section 994 of the Companies Act 2006.

The man was sole director of a restaurant bookings company that merged with another. He entered into a service agreement with the merged company and agreed to serve as its chief executive officer. He was, however, subsequently dismissed and removed as a director of the company.

He issued a petition under Section 994, claiming that his removal as a director and the issuance of further shares after his departure unfairly prejudiced his position as a minority shareholder. Included in the petition was a claim for lost salary based on an assertion that his dismissal was wrongful.

The company and its majority shareholders applied to have the latter claim struck out on the basis that it was misconceived. The High Court acknowledged that the issue was a novel one and that there was no precedent for a wrongful dismissal claim to be issued in the context of an unfair prejudice petition. However, the Court could identify no objection in principle to that course and allowed the claim to proceed to trial.

In modern Britain body art is largely viewed as part of mainstream fashion and a lifestyle choice people of all backgrounds choose. The days of tattoos being confined to specific subcultures have long since past. It’s now believed that that 20% of Britons have a tattoo.

However, despite this change in attitude, many employers still have a negative view of body art and prefer their employees to cover up tattoos where possible. Other employers will simply not hire someone with tattoos. This has resulted in a lot of skilled workers, usually of the younger generation, missing out on the employment opportunities they could otherwise achieve.

Margaret Mountford, the revered lawyer and businesswoman known for her appearances on The Apprentice, views employer attitudes towards body art as “a real problem” for young people. This concern is supported by the sheer number of younger people with tattoos, which is now a third of Britons aged below 30.

The exact nature of this employer concern is rooted in the belief that body art is somehow unruly and people with tattoos are somehow less responsible, which in turn reflects badly on a company’s image and shakes client faith in the brand, leading many businesses to request their employees wear clothing concealing their body art.

Employer advice group Acas is currently campaigning to encourage firms to reassess their view of body art and the employee dress codes involved, as well as encouraging employer and employees alike to consider whether forcing body art to be covered is actually a form of workplace discrimination.

Stephen Williams, the Head of Equality at Acas, recognises employer concern over tattoos but feels a fair balance for what is deemed acceptable needs to be undertaken: “Businesses are perfectly within their right to have rules around appearance at work but these rules should be based on the law where appropriate, and the needs of the business, not managers’ personal preferences.”

Williams also believes businesses experience a loss when skilled staff with tattoos are not employed as a result of this so called ‘ink discrimination‘: “A dress code that restricts people with tattoos might mean companies are missing out on talented workers.”

A dismissive attitude towards tattoos in the workplace is by no means a recent occurrence, but it is only now coming under the microscope due to so many British citizens embracing body art and a number of well publicised employment law cases. In 2015 a trainee was sent home on her first day of work because the Catholic School she was teaching at objected to her tattoos.

Many may agree that such employer attitudes are justified if the tattoos in question are an example of extreme body art, but there have been cases where an overreaction is abundantly clear, such as when a business consultant was recently dismissed from her job for having a butterfly tattoo measuring 4cm on her foot.

If tattoos are to be considered a personal form of self-expression, any effort to censor them in the workplace may actually be an act of discrimination. However, this stance leads to further questions of whether there are certain types of tattoos that should be acceptable over others. Is it okay if controversial phrases or symbols are allowed to be displayed if an employee believes in them? Examples of this could include imagery of religious significance to an individual. But what happens if such potentially conversational expression then causes offence to other workers?

Should tattoos perhaps be considered a protected characteristic under the Equality Act 2010? The rules on body modification as a characteristic are not clearly defined, but if a single set of rules were enforced for all businesses there would certainly be some industries seeking stricter criteria while others prefer a more relaxed approach. A lot of discussion on the subject is yet needed.