GMB calls on Government to end Swedish derogation
“It has taken many years to get to this point but no matter how long it takes, we will pursue justice and equal pay for our members”, says GMB Southern
GMB have called on the Government to end the 'Swedish derogation' model after an Employment Appeal Tribunal (EAT) ruled that an employer's contracts did not comply with it.
The 'Swedish derogation' model provides an exemption to equal pay for agency workers, provided the agency offers the worker a permanent contract of employment, pays the worker between assignments and complies with various other conditions.
In 2015, GMB lodged Employment Tribunal proceedings on behalf of more than 200 GMB members who were low-paid warehouse agency workers, employed by Tempay Limited/Twenty-Four Seven Recruitment Services Ltd, working at a Marks and Spencer warehouse near Swindon.
Their work at the site was run by Wincanton Group Ltd and then DHL Management Services Ltd who had their own staff working there but used a number of agency workers on lower pay. Despite doing the same job, the agency workers were only paid the minimum wage whereas the permanent staff earned more.
According to the law, agency workers on an assignment for more than 12 weeks should get the same pay as permanent staff doing the same job.
In 2017 the Employment Tribunal ruled in favour of the workers finding that their contracts did not allow the agency to avoid paying equal pay. The rules require workers to be given details of the main terms of the contract, including details of the expected hours of work during any assignment. The Tribunal found that there was insufficient detail in the contracts as workers were told they could expect to work 'any 5 days out of 7' The contracts therefore did not comply with the rules.
The agencies appealed and the Employment Appeal Tribunal has now again ruled in favour of the workers saying that the contracts did not allow the agencies to use the exemption. This means that it is now open for the claimants to argue for the same pay as the permanent staff.
Andy Newman, GMB Branch Secretary said: "It has taken many years to get to this point but, no matter how long it takes, we will pursue justice and equal pay for our members."
Elizabeth Stephenson, Partner at Pattinson and Brewer Solicitors, who represented GMB said: "This is an important decision because it is the first ever case at EAT level on the issue.
"Agency workers are often low-paid and vulnerable and tend to be treated worse the further down the supply chain they are. A worker needs to have an idea of how many hours work they can expect to get.
"GMB has supported these workers for over 4 years in a long and complex fight to get this excellent result."
Carole Vallelly, GMB Regional Organiser said: "The law is being used to exploit low paid and vulnerable workers. GMB calls on the Government to end the Swedish derogation and give workers dignity and respect.'
Paul Maloney, GMB Regional Secretary said: "We have fought hard for the repeal of the Swedish derogation which has only ever been used in the UK to the detriment of GMB members and their fellow workers."
If you have any queries in relation to your employment, please contact your GMB representative.
Contact: Carole Vallelly 07912181476 or email Carole.Vallelly@gmb.org.uk or GMB Southern Region Press Office 07970 114762
