2013 - Bray & Others v Monarch Personnel Refuelling (UK) Ltd
11 January 2013
11 January 2013
Jan 13
The recent judgement
on the above Employment Tribunal hearing makes for interesting reading and appears
to support my view that the date of a new assignment is what is important when
considering the use of a “Swedish Derogation” contract.
Background
The
claim was brought by a group of tanker drivers who worked for an agency, which
contracted for provision of their services to BP. All the drivers had worked continuously for
BP on a series of assignments over a number of years and all except one driver
had only ever been assigned to BP.
Drivers
directly recruited by BP were paid more than the agency drivers with union
involvement at a previous time ensuring that their rate of pay would be higher
than that of the agency staff. With the
introduction of the Agency Workers Regulations BP instructed the agency to
employ its drivers under Swedish Derogation contracts rather than equalising their
pay to the higher hourly rate paid to comparable BP employees.
The
Agency held meetings with the drivers in October 2011 to explain that new
contracts would be issued at the end of their current assignment with BP, which
was due to finish on 30th November 2011. The drivers were issued
with new contracts on the 15th November with most returning them by
29th November.
The Issue
The
workers raised the claim for pay parity stating that, in issuing a new contract
that included Regulation 10 rights, the requirements of Regulation 10(1)(a)
were not correctly met.
10(1)(a) the contract
of employment was entered into before the beginning of the first assignment
under that contract and includes terms and conditions in writing relating to…..
The
workers argued that a Regulation 10 compliant contract should be in place prior
to the first ever assignment with the hirer.
The Judgement
Judge
Forrest held that the meaning of assignment
did not relate to the total period that an agency worker had been engaged by an
agency and a new assignment could be considered to be the first assignment
under a new contract. As such, the fact
that the drivers had been engaged under contracts which had assigned to the same
hirer several times under those contracts, didn’t prevent the assignment
starting on the 1st December being the first assignment under the
new contract. It is possible to divide a period of engagement with a hirer into
multiple assignments which can potentially be served under different contracts.
In
addition, that contract means the
contract in force at the time of the first assignment under its terms. The
drivers had entered into new contracts by the 29th November, which
was before the first assignment under this contract that started on the 1st
December.
It
was also held that it did not matter whether the contract was new, existing or
a variation to an existing contract, the interpretation would apply to them
all.
The Implications
Although
this is only an Employment Tribunal decision, and therefore not binding on
other Employment Tribunals, it is important as it is the first case we are
aware of that has considered whether a worker can be transferred to a Swedish
Derogation contract when they will be working for the same hirer in the same
way. The case appears to give comfort, providing the timing of any such change
is managed appropriately. Where a derogated contract needs to be introduced our
advice is to ensure that the new contract or variation to the existing contract
is agreed with the employee prior to the date upon which the derogation needs
to take effect.
It
should be noted that the decision might still be appealed.