Rather than employ our own cleaners we are supplied with staff by Spit and Polish Limited, a large agency. Connie Tractor is one of the temps and she has been with us for 18 months now. Yesterday she delivered a written grievance about the office manager who supervises the cleaners, complaining that he keeps trying to get her alone in the broom cupboard and has made rude suggestions about what fun they can have with the feather dusters. She says that since she told him she wouldn’t touch him with a broom handle, he has made her do all the worst jobs like cleaning all the toilets. I know the statutory grievance procedures only apply to employees so surely Spit and Polish have to hear it. The problem is they say she’s not their employee either.
Temporarily Confused, Grubby Limited, London
You are right that the statutory grievance procedures only apply to employees. To confuse you even more, Connie may actually be your employee. Even if a contract exists which states that Connie is not your employee an employment tribunal can determine otherwise. This was confirmed by the Court of Appeal in the case of Dacas v Brook Street Bureau (UK) Limited. Following the principles in Dacas, the risk is particularly high in this case if neither Spit and Polish or Grubby Limited have a contract stating they are the employer and because Connie has worked for Grubby Limited for over a year.
In deciding who employs Connie, one of the main factors a tribunal will focus on, is who has most control over Connie. Even if Spit and Polish pay Connie, can discipline her and terminate the assignment, if Grubby has day to day supervision of her work and could in effect dictate decisions about whether she continues to work for it, it is likely to be her employer. In short, the more Grubby behaves like an employer towards Connie the more likely it is to be her employer.
This clearly poses a problem for Grubby Limited in the current circumstances. If it does not hear Connie’s grievance and she successfully claims she is Grubby’s employee and she has been discriminated against, any award of damages would be uplifted by between 10% and 50%. On the other hand, if you hear the grievance this might encourage the tribunal to conclude that Grubby is her employer.
Even if Connie is not Grubby’s employee, it could still be potentially liable for any discriminatory treatment against her because the Sex Discrimination Act also protects contractors. Grubby Limited could be liable to pay damages although if Connie is not its employee, the damages would not be subject to any uplift for a failure to follow a grievance procedure.
To assess the risk of Connie being your employee, you need to check out the documentation which exists between Grubby Limited and Spit and Polish Limited and between and Connie to see what it says about the employment relationship. You then need to take a critical look at exactly who makes the decisions regarding Connie’s work. If it appears on balance that Grubby Limited takes the lion’s share of responsibility and if there is no employer, the safest course would be for Grubby Limited to hear the grievance and to take appropriate steps as if Connie were its employee. If Connie worked independently from Grubby Limited and is controlled by Spit and Polish and in particular if Spit and Polish are expressed to be her employer then, although this could still mean that Grubby Limited is liable to compensate her, there will be no disadvantage in not hearing the grievance. However, the obvious practical benefit of following a process is that it may result in an early resolution of this issue and possibly resolve the situation without it becoming litigious and an employment tribunal being required to determine the question of status for you.