The long-running battle between a trades union, a university and a facilities management services firm "is far from over" despite the High Court ruling against the union in a recent case.
07 May 2019 | Herpreet Kaur Grewal
As this magazine was going to press Jason Moyer-Lee, general secretary of the Independent Workers Union of Great Britain (IWGB), told Facilitate that it had applied to appeal its case for joint employment rights for outsourced workers and its dispute with support services firm Cordant.
The union has submitted its application for both separate cases to the Court of Appeal, which is the highest court within the senior Courts of England and Wales, subordinate only to the Supreme Court.
Moyer-Lee said the union was now "waiting for the decision from the court on whether we have permission [to pursue this]". He added: "If they refuse permission we will go to the European Court of Human Rights."
Moyer-Lee said the union's arguments are based on Article 11 of the European Convention on Human Rights. He added that it was "hard to say" if the union would be successful.
"It is a noble argument but it works for us and against us. On the one hand, a judge in the Court of Appeal could be intrigued [by the case], but on the other hand, it could be seen as too much of a push."
A white paper by a legal advisory consultancy firm published a few days after the High Court decision emerged in March also states that the case is likely to continue.
Joint Employer Status: Implications for Outsourcing in the FM Sector, published by International Workplace, is a legal update on the employment law aspects of outsourcing for the FM sector produced in association with IFMA's UK chapter. It considers employment legislation that service providers must be aware of including TUPE, commercial obligations and the contractual relationship between a business and its workers. It focuses on the case concerning security guards, post room staff and porters employed on a contract between the University of London and Cordant Services, with the IWGB union making the case for the university being seen as their "de facto employer".
The High Court rejected the union's argument that outsourced workers should be entitled to negotiate pay rates and job terms with both their employer and the employer's client.
Tar Tumber, director of employee relations at International Workplace and author of the paper, had earlier told Facilitate that the union "could take it to the Court of Appeal" and "continue fighting". She said: "They feel what is happening to outsourced staff is fundamentally unfair ... They are constantly pushing for worker rights and I can't imagine they will let this one go very quickly."
Tumber pointed out that outsourcing is "a valuable business tool" that is not going away any time soon. She said what is important is that the client (or end user) and service providers need to be "really clear on how they manage the individuals in that outsourced relationship, so those who work for the client know that they are not workers of the client but employed by the agency. Those lines can get blurred and that's what causes problems."
She added that the government was looking to address employment practices in the Good Work Plan (its response to the Taylor Review) to "provide clarity to organisations".
Tumber's paper also points out that the union's case should be of great interest to any FM service providers or contractors who provide outsourced staff to their clients.
She adds: "While the 'outward' impact on outsourcing would be minimal, both clients and outsourced providers would be wise to review the 'real-life' outsourcing arrangements in order to mitigate and minimise the likelihood of a claim being raised against them in future."
Last year Facilitate also reported that the University of London's central administration would work closely with the recognised trade unions and current contractors to transition FM staff into the university after a review of contracted services in November 2017 - a process it is still enacting.
A spokeswoman said the cleaning staff are currently outsourced but all are paid the London Living Wage as a minimum. Any services that are brought in-house will be subject to a review process and the terms and conditions determined at that point.
The university has still not decided which services will be in-house or outsourced, she added. "The university has repeatedly confirmed over the past months its support for the principle of insourcing services and, indeed, is already bringing front-of-house, portering, post room, and AV services back in-house by the end of May. The university is applying the same review process to the other externally contracted services, which should be completed by 2020 at the latest."
She said the university is operating in "a financially challenging" environment. "The cost of moving too quickly would significantly reduce resources for key academic and other activities. We need to protect them. We are extremely concerned at the level of intimidation our permanent staff has to endure due to verbal and online abuse from some supporters of the insourcing campaign."
At the time of going to press, Cordant had not responded to Facilitate's request for a comment on the High Court decision or the union's application to the Court of Appeal.