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UK – Court limits risk of using agency workers

06 December 2012

The Court of Appeal this week made a ruling that limits potential risks for the use of agency staff. This follows a case in which an employer was sued by agency workers on grounds of discrimination, and the court decided that a three-month time limit had to be followed to bring such claims forward.

The case, Okoro & Okenwa v. Taylor Woodrow Construction, saw the claimants complaining of race discrimination following a decision by the end-user to 'ban' them from their construction sites. The agency workers then brought their claims forward to the employment tribunal more than three months after the ban was imposed. They argued that this ban was racially motivated and represented a ‘continuing act’.

And this was the crux of the matter which focused on the following: whether the allegation was a ‘continuing act’, or a ‘one-off act’ with continuing consequences. If it was a one-off act, the claimants’ claim was out of time. And if was a continuing act, time had not even started to run as the alleged discriminatory policy was still in place.

The Court of Appeal upheld the previous employment tribunal’s conclusion that, in this case, the ban was a one-off act. Therefore the claim had to be made within three months. If the claimants had succeeded, agency workers who are 'banned' could have had unlimited time to bring any discrimination claim.

The Court said the one-off decision was equivalent to the dismissal of an employee by an employer. Further, there could not be a continuing state of affairs amounting to an act extending over a period when there was no continuing relationship between the parties.

Tom Kerr Williams, employment partner at law firm DLA Piper said: “This will be of comfort to businesses who use agency workers. If a ban is imposed, the end user may in some circumstances be at risk of a discrimination claim by the affected agency workers.

“However, that claim would need to be brought within three months of the ban being imposed. If the Court of Appeal had reached the opposite conclusion, the agency workers would potentially have been able to bring the claim many months or even years down the line as long as the ban remained in place.

“The difficulty then faced by employers is how to prove that the decision to ban the workers was not made for discriminatory reasons. The more time that passes, the more likely it is that the individual who made the decision to ban the workers may have moved on, which may make proof more difficult. The Court of Appeal's decision limits the potential risks for users of agency staff in this respect.

“Companies should, however, continue to be wary in circumstances where the banned workers present themselves for work and are turned away as a result of the ban. If this occurs after the date of the ban, it may amount to a separate and distinct act which could start the three-month time limit running again,” he said. 

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