Agency v Permanent Staff Covid situation.

spygirl

Hi All,

Hoping one or two of the employment law heads reading tonight. Genuine scenario looking for views on please.

What is the position in treating permanent and Contract/Agency staff differently during the Covid crisis? Does the Protection of Employment Act apply where agency and contract staff are being dismissed due to Covid while permanent staff are retained.

Some were on rolling contracts, others had contracts which were not due to expire for a period of another few months, others were agency staff.

Remote working had been ongoing but company has decided to let all non permanent staff go. Some have the one year required for UDA to apply.

Only criteria for selection for dismissal is agency and contract, no other staff impacted. Is this potentially unfair selection for dismissal or unequal treatment of Agency staff. Especially given Gov has given a package which would pay a % of their wages during the crisis.

Work is still ongoing, but on a remote basis. there is no downturn in business due to the nature of the work. Company has stated they cannot justify retaining contract or agency staff when permanent staff are not currently being fully utilised.

Semi State/Public sector employer

Please be nice as actual, not hypothetical scenario. Some lurkers to this thread will be directly impacted. Thanks in advance.

Victor

In the healthcare sector, I understand that special rules have been or are about to be implemented.

Different rules will shortly apply to the Defence Fores and likely the Garda.

In any business, contractors and agency staff may find themselves subject to an "as and when needed" clause in their contracts.

spygirl

Victor wrote: »

In the healthcare sector, I understand that special rules have been or are about to be implemented.

Different rules will shortly apply to the Defence Fores and likely the Garda.

In any business, contractors and agency staff may find themselves subject to an "as and when needed" clause in their contracts.

Thanks for that Victor, appreciate the response. Wondering if since they have been told welcome back as soon as this is over, if it counts as less favourable treatment when compared with permanent counterparts.
Any chance you could share a little more info on special conditions being considered for other ares of the public sector?

All opinions, points of view greatly appreciated.

Mrs OBumble

The less-favourable-treatment requirement doesn't apply to all employment terms and conditions. I don't know what ones it does and doesn't cover any why - just that it is the case. When I was an agency worker, we got some paid sick leave because the permanent staff had it, but we didn't get paid maternity leave,which they also had.

Worth keeping in mind that you are not being dismissed. Instead, the company is terminating its contract with the agency, and as a result the agency (ie your employer) no longer has work for you. Also, the government's package in this case would apply to the agency, not to their client.

spygirl

With regards to straight direct contract workers though, am I right to think that it might apply there. As in contracted directly with the company? No triangular relationship, just company and contractor involved.

listermint

In many ways this does show how contracting can't be have cake and eat it.

Many choose contracting because the money is far better and they can dictate the terms mostly.

But something like the current crisis exposes some of the holes on self contracting.


Can't be all cake.

spygirl

listermint wrote: »

In many ways this does show how contracting can't be have cake and eat it.

Many choose contracting because the money is far better and they can dictate the terms mostly.

But something like the current crisis exposes some of the holes on self contracting.


Can't be all cake.

Not in all instances. Situation here was temp contracts with a view to permanency subject to performance after a period of time. No extra pay as contract, pay parity. Now contracts being dismissed early. no as and when clause contained in the contracts.

Mrs OBumble

spygirl wrote: »

Not in all instances. Situation here was temp contracts with a view to permanency subject to performance after a period of time. No extra pay as contract, pay parity. Now contracts being dismissed early. no as and when clause contained in the contracts.

So not contractors at all. Just temps.

In that case, letting temps go first is absolutely the right thing to do.

spygirl

Mrs OBumble wrote: »

So not contractors at all. Just temps.

In that case, letting temps go first is absolutely the right thing to do.

It's a mixture, agency, contractors and temps, plus FTC contracts, FTP contracts etc. Different categories.

Surely redeployment would have made more sense to maintain links for when this finishes. Seems a penny wise pound foolish decision especially if this may be gotten under control in the next month. Not yet unlikely that late May could not see a phased return to working etc.

Batgurl

I really feel for people on contract, temp or agency contracts in the current situation. I totally understand that people took these roles because they were led to believe they would lead to full-time permanent employee contracts.

However, I hope that this situation makes people realise that nothing is certain unless it’s guaranteed, and in writing. I personally would never accept a recruiter/hiring manager/agency’s word on anything they tell me about a job “eventually leading to” full-time permanency. If that’s “not the companies way” then I see it as a massive warning as a prospective employee, like a company that doesn’t pay sick leave or doesn’t pay for training.

Companies do the temp/FTC exactly for instances like this so they can wiggle out of them. When you have a full-time, permanent employee, you have to set aside cash for redundancy/notice for them. They are essentially a fixed liability. But temp/contract/agency workers are disposable and as we are seeing in the current climate, companies have no problem disposing of them.

It should be learning experience for jobseekers everywhere.

spygirl

Batgurl wrote: »

I really feel for people on contract, temp or agency contracts in the current situation. I totally understand that people took these roles because they were led to believe they would lead to full-time permanent employee contracts.

However, I hope that this situation makes people realise that nothing is certain unless it’s guaranteed, and in writing. I personally would never accept a recruiter/hiring manager/agency’s word on anything they tell me about a job “eventually leading to” full-time permanency. If that’s “not the companies way” then I see it as a massive warning as a prospective employee, like a company that doesn’t pay sick leave or doesn’t pay for training.

Companies do the temp/FTC exactly for instances like this so they can wiggle out of them. When you have a full-time, permanent employee, you have to set aside cash for redundancy/notice for them. They are essentially a fixed liability. But temp/contract/agency workers are disposable and as we are seeing in the current climate, companies have no problem disposing of them.

It should be learning experience for jobseekers everywhere.

But that's the thing. Even Contract workers etc are entitled to redundancy payments once the relevant conditions are met, ie 104 weeks class A stamp etc. So if contracts with a company are being brought to an end early, when said contracts are in writing with an employee to a specific date, wriggling out is still a breach of a contract.
While it may be justifiable where there has been a loss,expected to be losses etc, in circumstances where there hasn't been one, does it raise the question of less favorable treatment?

If the contract was coming to a natural end and they decided not to renew given the situation, it is would be fair enough. To cancel them absent relevant notice periods etc is not. Hence the query.

spygirl

spygirl wrote: »

But that's the thing. Even Contract workers etc are entitled to redundancy payments once the relevant conditions are met, ie 104 weeks class A stamp etc. So if contracts with a company are being brought to an end early, when said contracts are in writing with an employee to a specific date, wriggling out is still a breach of a contract.
While it may be justifiable where there has been a loss,expected to be losses etc, in circumstances where there hasn't been one, does it raise the question of less favorable treatment?

If the contract was coming to a natural end and they decided not to renew given the situation, it is would be fair enough. To cancel them absent relevant notice periods etc is not. Hence the query.

Redundancy payments may apply if the position being occupied by the contractor becomes redundant. If full time staff members are reassigned to those positions due to business needs, the position does not become redundant, hence no automatic right to redundancy payment.

Also, if the contractors employment contract states that the UDA does not apply at the end of the term, only that the contract is determined, then the contractor does not automatically have protection of UDA if let go. I suspect a lot of employers will quite rightly envisage this going on for an extended period, and are therefore cutting contractors earlier. Where the contractor may be entitled to be paid up to the end of the contract, due to closure/lay-off, they are not being paid and would be entitled to the Covid 19 €350 payment.