Agency Workers and Constructive Dismissal

Introduction

A job for life is now the market exception. Previously, employees would join a company and expect to remain with that company benefitting from promotions and salary increases until their retirement. However, as society has changed, so have our methods of working. The gig economy has exploded and workers are now in a more precarious position than they ever were. A number of intermediary employment agencies have established themselves in order to source workers and provide their services to a third party. However, what happens when a worker subscribes to an employment agency and that agency fails to provide them with any work? Can they consider themselves to be constructively dismissed?

Agency Worker Rights

In A Warehouse Operative -v- An Agency Recruitment Company (ADJ00014942), the respondent company took on the worker on what was intended to be a full time basis, subsequently being subcontracted to a third party company. However, at a point in time, that third party company no longer had any work available for the complainant. The third party company therefore ended his employment with them. The complainant worker was not provided with any alternative work by the employment agency and therefore resigned.

Agency Worker and Unfair Dismissal

The complainant understood that his rights were protected by reason of Section 13 of the Unfair Dismissals Act of 1993 which states :- 

“13.- Where, whether before on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third party (whether or not the third person is a party to the contract and whether or not the third party pays the wages or salary of the individual in respect of the work or service), then for the purposes of the Principal Act, as respects a dismissal occurring after such commencement-

1. The individual shall be deemed to be an employee employed by the third person under a Contract of Employment,
2. If the Contract was made before the commencement, it shall be deemed to have been made upon such commencement, and
3. Any redress under the Principal Act for Unfair Dismissal of the individual under the Contract shall be awarded against the third party.”

Agency Worker and Alternative Employment

The Adjudication Officer noted that there was no evidence to suggest that there was any active attempt by the employment agency to find alternative employment for the worker. The employment agency was described of washing their hands of their obligations to provide the worker with alternative employment by suggesting that the worker was difficult, stubborn and refusing to consider alternative options.

The Adjudication Officer noted: 

“It appears to me that the limited email communication does not bear witness to any attempt by this Employer to perform it’s duty of care to the Employee. I note that the Contract of Employment allows for no liability attaching should it fail to offer opportunities but I do not accept that this is covered in this situation where the Complainant was just not fully engaged with by the employer one way or another.

In the circumstances, I accept that the Complainant lost trust in the Employer and I accept that the Employee was in all the circumstances entitled to consider the conduct of the Employer to be such that the Employee was entitled to terminate his employment and it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997). The Employment was terminated by the act of issuing a Workplace Relations Complaint Form on the 26th of May 2018. The Complainant was therefore Constructively dismissed.”

Redress to Agency Worker

That being the case, the Adjudication Officer made redress in the form of compensation for the remuneration loss for a 20-week period to allow for the obtaining of alternative employment in due course. In that respect, the Adjudication Officer awarded the complainant worker €8,120.

Further Information

For further information, please contact the author of this article, Barry Crushell.