Government to face IWGB union in landmark court case for outsourced workers' rights

Workers want to collectively bargain directly with University of London which they say is their de-facto employer

The government is taking on a union in court in a landmark case that could have huge ramifications for the UK’s army of 3.3 million outsourced workers, many of whom have fewer rights and face worse pay and conditions than in-house colleagues doing the same jobs.

The government has now waded into a legal battle after the High Court granted the Independent Workers’ Union of Great Britain (IWGB) permission for a judicial review of a decision that prevented it from representing a group of workers at the University of London (UoL).

The security guards, postroom workers, porters and receptionists, who work for facilities management firm Cordant Security, want to collectively bargain through the IWGB directly with UoL which they say is their de-facto employer. By not allowing them to do so the Central Arbitration Committee, which made the decision, is breaching the workers' human rights, the union argues.

After the High Court's ruling, the CAC's decision can now be judicially reviewed.

One security guard, who has been working at the university for 13 years and did not want to be named, said it was “simply unfair” that he and other Cordant staff received less generous employment benefits than colleagues employed directly by UoL.

“We do the same job, work in the same building and share the same canteen. Why should we have worse pension, worse holiday just because we work for Cordant? We are all really working for the university,” the person said.

The University won't recognise the IWGB because it says staff can join Unison, which already represents many of its workers.

But the worker said he and his colleagues felt Unison didn’t listen to or deal with the concerns of outsourced staff, whereas IWGB took immediate action when concerns were raised.

​IWGB, which has represented workers in a number of high-profile cases against Deliveroo, Uber and City Sprint among others, says this refusal of recognition breaches Article 11 of the European Convention of Human Rights.

The government, which indirectly employs hundreds of thousands of outsourced workers, has now intervened.

Last week, the Department for Business, Energy and Industrial Strategy (BEIS) joined the litigation as an interested party, arguing that Cordant workers can't use human rights grounds to challenge UK union recognition laws simply because those laws are “regarded as sub-optimal in certain circumstances”.

Sean Nesbitt, a partner at law firm Taylor Wessing, said the case has echoes of the walkouts staged by women at Ford’s Dagenham plant in the 1960s which saw skilled women take action against the fact that their male counterparts were paid 15 per cent higher salaries.

In both that case and the present one, the incumbent union concerned was perceived to have a “cosy” relationship with the employer which meant it neglected the rights of a minority of the workforce they were supposed to represent.

The 1960s strikes ultimately led to the Equal Pay Act which for the first time mandated in law that men and women must be paid the same for work of equal value.

Mr Nesbitt said current law favours incumbent unions, making it difficult for a newcomer to dislodge them but said the IWGB was relying on an “incendiary argument that could have a huge impact on UK employment law”.

To force the university to recognise the IWGB for collective bargaining, it will have to convince the court that the workers are employed by both the firm named on their payslips and by the end user of their labour, ie the university.

While a doctrine of “joint employment” exists in the US to protect staff from fragmenting the workforce and blunting the effectiveness of unions, statute law in the UK does not explicitly support the concept.

“But there is a growing interest in this within government,” Mr Nesbitt said. “There is a move towards making sure companies cannot avoid their responsibilities.”

In May, the Director of Labour Market Enforcement, who is responsible for compliance with the minimum wage, recommended that companies which are effectively the end users of labour should be liable for breaches of wage laws.

Jolyon Maugham QC, founder of the Good Law Project said that judges may be less conservative with their interpretations of statutes at a time when parliament appears to be in “legislative gridlock”.

“There are many ways bad employers dodge the cost of workers’ rights and outsourcing can be one of them,” Mr Maugham said.

He added: “The law often erects companies as a shield between workers and their employment rights.”

“Judges are anxious to ensure workers get what parliament has provided for and to discard what sometimes is artifice to get to the reality.”

The Good Law Project, which is suing Uber in a separate case, has donated £5,000 to start off a crowdfunding campaign launched by the IWGB on Tuesday to fund the case.

The union said its costs could run to hundreds of thousands of pounds as it battles lawyers for Cordant - a company with more than £1.2bn turnover - as well as UoL and now the government.

A BEIS spokesperson said: “The department believes that the IWGB’s challenge should be rejected because the workers are already represented by an independent union – this is in line with the European Convention of Human Rights. It would be inappropriate to comment further on an ongoing court case.

“We are absolutely committed to protecting workers’ rights, and employees have the opportunity to be represented by a trade union.“