Outsourced workers can’t “insource” union recognition

The Central Arbitration Committee has rejected an application by a trade union for recognition by the University of London in respect of outsourced workers.  The University is the end user of the services their employer provided. Mills & Reeve (David Faulkner) represented the University.

The application was made by the Independent Workers’ Union of Great Britain on behalf of some 70 outsourced workers employed by Cordant Security and providing various services to the University including security and reception. These workers were in fact already covered by a voluntary recognition agreement between Cordant and Unison.

IWGB presented a novel argument in this case, to the effect that the definition of “worker” in our trade union legislation should be extended to cover not only the “direct employer”, but any end user which “substantially determined” their pay and conditions. IWGB pointed out that our whistleblowing legislation already includes express wording to that effect, and argued that similar provisions should be implied in this situation to ensure that our legislation was compatible with the European Human Rights Convention.

The CAC ruled that the application was not admissible. Even if the Union could show that the University did substantially determine the pay and conditions of the outsourced workers (which the University denied), the CAC was not in a position to extend the definition of “worker” for these purposes, which clearly precluded the possibility of the Union’s application. If the Union wished to pursue its argument that the relevant legislation was incompatible with the Convention, it would need to apply to the High Court.

It is interesting to put this decision alongside another unsuccessful union recognition application to the CAC, made last year by Deliveroo riders who argued that they should be treated as workers for these purposes. In last year’s decision it took what many regarded as a relatively strict approach to the definition of worker. This contrasts with what is arguably a broader approach taken by the Employment Appeal Tribunal last year in the Uber case, although in the context of a claim for holiday pay, where a slightly different definition of worker applies.

This case was first trailed in this BBC article as a potential game-changer for outsourcing generally, not just in the higher education sector. That may well have been one of the reasons the CAC declined the application, stating that “far from creating fair and efficient practices, [what the IWGB was seeking] would be a recipe for chaotic workplace relationships”.

 

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